Douglas Dwane Shirley v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00027-CR

Douglas Dwane Shirley,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 271st District Court

Jack County, Texas

Trial Court No. 3,802

ABATEMENT ORDER

Douglas Shirley appeals from a judgment and sentence dated December 3, 2004.  He timely filed a notice of appeal, and his brief was originally due on or before November 21, 2005.  On September 9, 2005, Shirley’s retained counsel, Jimmy L. Browning, filed a motion to dismiss the appeal.  On October 12, 2005, the Court denied the motion to dismiss because it had not been personally signed by Appellant.  See Tex. R. App. P. 42.2(a) (“An appellant must personally sign the written withdrawal.”). 

In a letter dated January 6, 2006, the Clerk of this Court notified Mr. Browning that Appellant’s Brief was overdue and that unless a brief or a satisfactory response (such as a motion to dismiss or a withdrawal of notice of appeal, personally signed by Appellant) was received within 10 days, this Court must abate the appeal and order the trial court to immediately conduct a hearing.  See Tex. R. App. P. 38.8(b)(2), (3).  Thereafter, the Clerk of this Court had numerous telephone conversations with Lydia A. Knust, Mr. Browning’s paralegal, about the status of this appeal, yet Mr. Browning has, to date, failed to comply with this Court’s January 6, 2006 letter.

To ensure that Shirley is receiving effective assistance, we abate this cause to the trial court with instructions to hold a hearing to determine: (1) why a proper brief or a motion to dismiss or a withdrawal of notice of appeal, personally signed by Appellant, has not been filed on Appellant’s behalf; (2) whether Appellant’s attorney has abandoned the appeal; (3) whether Appellant still desires to proceed with the appeal; and (4) whether Appellant desires to represent himself.  See Tex. R. App. P. 38.8(b)(3); Fewins v. State, 170 S.W.3d 293 (Tex. App.—Waco 2005, order)(Fewins contains an extended discussion of these issues).

The trial court shall conduct the hearing within thirty days after the date of this order.  The trial court clerk and court reporter shall file supplemental records within forty-five days after the date of this order.  See Fewins, 170 S.W.3d at 296-97.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal abated

Order issued and filed July 19, 2006

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