Earnest Demone Hebert v. State ( 2014 )

Order filed December 9, 2014. In The Fourteenth Court of Appeals NO. 14-13-00370-CR EARNEST DEMONE HEBERT, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 248th District Court Harris County, Texas Trial Court Cause No. 1364909 ORDER This appeal has been pending for over a year. When the appeal was filed, appellant was not represented by appellate counsel. Appellant’s brief was originally due July 23, 2013. When the brief was not filed after appellant was granted two extensions of time to obtain funds to retain an attorney, the court abated the appeal and requested that the trial court make a determination about whether appellant was entitled to appointed counsel. After a hearing, the trial court determined appellant is not indigent. On December 17, 2013, we reinstated the appeal and ordered appellant to file a brief on or before January 21, 2014. Appellant then requested and was granted two extensions of time until May 27, 2014, with a notation that no further extensions would be granted absent exceptional circumstances. No brief was filed. On July 24, 2014, the court again abated the appeal and requested the trial court to make findings about whether appellant had effectively abandoned the appeal by failing to make arrangements to file a brief, as set out in Texas Rule of Appellate Procedure 38.8(b). On August 15, 2014, a record of the second abatement hearing was filed. At that hearing, retained counsel, Tom Zakes, appeared for appellant. Counsel informed the court that he believed he could file the brief by November 15, 2014. Accordingly, we reinstated the appeal and set appellant’s brief due Monday, November 17, 2014. No brief was filed. On November 18, 2014, the court notified appellant that the brief was past due. On December 5, 2014, counsel filed a motion for extension of time to file appellant’s brief, asserting that this was the first motion to extend time to file the brief. While the December 5 motion is counsel’s first extension request, we note that appellant was granted numerous extensions of time before counsel was retained, and retained counsel was granted 90 days to file the brief after he made an appearance in this case. We GRANT the motion, but issue the following order: We order Tom Zakes to file a brief with the clerk of this court on or before December 31, 2014. No further extensions will be granted absent exceptional circumstances. If counsel does not timely file appellant’s brief as ordered, the court may issue an order abating the appeal and directing the trial court to conduct a hearing to determine the reason for the failure to file the brief. PER CURIAM Panel consists of Chief Justice Frost and Justices Boyce and McCally.