Don Eric Wolters v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00222-CR
DON ERIC WOLTERS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court
Randall County, Texas
Trial Court No. 25,203-B, Honorable John B. Board, Presiding
November 20, 2015
ORDER OF ABATEMENT AND REMAND
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Don Eric Wolters appeals the trial court’s order revoking his deferred
adjudication community supervision, adjudicating him guilty of the offense of evading
arrest or detention using a vehicle,1 and sentencing him to twenty years imprisonment
and a $1,500 fine.
The reporter’s record was filed on July 1, 2015. The trial court clerk’s record was
filed on September 22. Consequently, appellant’s brief was due on October 22.
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TEX. PENAL CODE ANN. § 38.04 (West Supp. 2015).
Appellant has neither filed a brief nor requested an extension of time. On October 29,
we sent appellant notice that his brief was past due. In that letter, we informed
appellant that if he failed to file his brief by November 9, the appeal would be abated
and the cause remanded to the trial court for further proceedings without further notice.
Appellant has not filed a brief and we have had no further communication from
appellant’s counsel.
Appellate Rule 38.8(b) provides, in part, that in a criminal case an appellant’s
failure to file a brief does not authorize either dismissal of the appeal or consideration of
the appeal without briefs, unless the trial court has found either (1) that the appellant no
longer desires to prosecute the appeal, or (2) that the appellant is not indigent but has
not made the necessary arrangements for filing a brief. TEX. R. APP. P. 38.8(b)(1), (4).
Therefore, we abate this appeal and remand the cause to the trial court for further
proceedings pursuant to Rule of Appellate Procedure 38.8(b).
On remand, the trial court shall utilize whatever means it finds necessary to
determine the following:
1. whether appellant desires to prosecute his appeal;
2. whether appellant is indigent and entitled to the appointment of counsel;
3. whether appellant has abandoned the appeal or failed to make necessary
arrangements for filing a brief;
4. the reason for the failure to file a brief; and
5. if appellant desires to continue the appeal, the date the Court may expect
appellant’s brief to be filed.
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Should the trial court determine appellant desires to prosecute this appeal and is
indigent, it shall determine whether present counsel should remain as appellant’s
counsel or new counsel should be appointed. Should the trial court appoint new
counsel or if appellant has retained new counsel, the name, postal service and e-mail
addresses, telephone number, and state bar number of the newly-appointed or newly-
retained counsel shall be provided to the Clerk of this Court in an order of the trial court.
Finally, the trial court shall execute findings of fact, conclusions of law, and any
orders it may enter regarding the aforementioned issues and cause its findings,
conclusions, and orders, if any, to be included in a supplemental clerk’s record to be
filed with the Clerk of this Court by December 21, 2015.
New counsel, if any, shall file appellant’s brief within thirty days of the date of
appointment or engagement; however, should current counsel be permitted to remain
as counsel, he shall file appellant’s brief within ten days of the trial court’s decision.
It is so ordered.
Per Curiam
Do not publish.
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