Filemon Herrera v. State ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00234-CR
FILEMON HERRERA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 12-04824-CRF-361
ABATEMENT ORDER
In this case, appellant, Filemon Herrera, appeals his conviction for continuous
sexual abuse of a child for which he received a forty-five year prison sentence. See TEX.
PENAL CODE ANN. § 21.02 (West Supp. 2014). The trial court entered its judgment on July
10, 2014. Herrera filed his notice of appeal in this case on July 31, 2014. Herrera was
declared to be indigent and was appointed appellate counsel. In his docketing statement,
Herrera indicated that he would be requesting a free Reporter’s Record in this case.
Our records indicate that the Reporter’s Record in this case was originally due on
September 8, 2014. See TEX. R. APP. P. 35.2. Because Court Reporter Felix Thompson did
not file the Reporter’s Record in this case by September 8, 2014, we sent a letter on
September 30, 2014, requesting that Thompson file the record within thirty days. On
October 20, 2014, Thompson responded to our letter and informed this Court that he had
written Herrera’s appellate counsel to make financial arrangements for the Reporter’s
Record. Subsequently, on October 24, 2014, Thompson filed a motion for extension of
time, requesting a new filing date of December 1, 2014. Also, in his October 24, 2014
letter, Thompson indicated “that financial arrangements have been satisfied and payment
has been . . . made.” We granted Thompson’s motion, thereby extending the filing date
for the Reporter’s Record to December 1, 2014.
Because we did not receive the Reporter’s Record by December 1, 2014, on January
13, 2015, we sent Thompson a letter requesting that he file the Reporter’s Record within
ten days. On January 27, 2015, Thompson moved to extend the filing deadline to
February 8, 2015. In this motion, Thompson indicated that the Reporter’s Record was 550
pages and that “[a]ll that is left is proofing, correcting[,] and filing.” We granted
Thompson’s motion, thereby extending the filing deadline to Monday, February 9, 2015.
Thereafter, on February 16, 2015, Thompson sent this Court an email stating that
he was taking a five-week, non-paid leave of absence from his duties as the official court
reporter for the 361st District Court to become current with his appeals records. On
March 4, 2015, we acknowledged Thompson’s February 16, 2015 email and notified him
that the Reporter’s Record in this case was long overdue. We have not received any
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written correspondence from Thompson about this case since the February 16, 2015
email. Furthermore, Thompson has yet to file the Reporter’s Record in this matter.
It is the joint responsibility of this Court and the trial court to ensure that the
appellate record is timely filed. Id. at R. 35.3(c). Further, this Court may enter any order
necessary to ensure the timely filing of the appellate record. Id. Accordingly, we abate
this appeal and order the trial court to conduct a hearing within twenty-one days of the
date of this abatement order to determine a date certain by when the reporter’s record
can be filed in a manner that does not further delay the prosecution of this appeal or have
the practical effect of depriving appellant of his right of appeal.
The court reporter is ordered to file a supplemental reporter’s record with this
Court containing the transcription of the hearing within seven days of the hearing.
Further, the district clerk shall file a supplemental clerk’s record with this Court
containing the trial court’s findings and order within seven days of the hearing.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed July 9, 2015
Do not publish
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