in the Matter of Rosalind A. Kelly, Attorney ( 2017 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00093-CV
IN THE MATTER OF ROSALIND A. KELLY, ATTORNEY
ORIGINAL PROCEEDING
April 3, 2017
SHOW CAUSE ORDER
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
On March 2, 2017, this Court rendered an order in cause No. 07-16-00156-CR,
pending in this Court, directing Rosalind A. Kelly, counsel for appellant Mauricio Gomez,
to file a brief. Gomez v. State, No. 07-16-00156-CR, 2017 Tex. App. LEXIS 1841 (Tex.
App.—Amarillo Mar. 2, 2017, per curiam order) (not designated for publication). Copied
here verbatim, the order stated:
Appellant Mauricio Gomez was convicted of the third-degree felony
offense of driving while intoxicated, third offense or more, 1 and sentenced
to nine years imprisonment. On February 29, 2016, appellant’s retained
counsel, Rosalind A. Kelly, filed a notice of appeal. 2 Twice we have
abated this appeal and remanded the cause to the trial court because
appellant’s counsel failed to comply with this Court’s orders.
We first abated the appeal on June 9, 2016, after appellant’s counsel
failed to request preparation and make acceptable payment arrangements
for the reporter’s record, despite our letter directing that be done. 3 The
clerk’s record was timely filed. Pursuant to our order of abatement, the
trial court held a hearing on June 30, 2016. At the hearing, appellant’s
counsel moved for the appellate record to be furnished without charge and
the motion was granted. When asked by the trial court why appellant’s
counsel had waited until the day of the hearing to file such a motion,
counsel responded that the appeal had “slipped through the cracks.” The
trial court found appellant desired to prosecute his appeal and was entitled
to have the reporter’s record furnished without charge due to his
indigence. The trial court also found that appellant’s retained counsel had
not abandoned the appeal and would remain as counsel. The appeal was
reinstated on our docket on July 11, 2016.
The court reporter’s record was filed on September 12, 2016.
Consequently, appellant’s brief was due October 12, 2016. When
appellant’s counsel failed to file a brief or request an extension of time to
file a brief by this deadline, we notified her that the brief was overdue and
granted, sua sponte, an extension of time to file the brief. Appellant’s
counsel did not file a brief or respond to our letter, however, so we again
abated the appeal and remanded the cause to the trial court on November
9, 2016.4 At a hearing on November 29, 2016, the trial court found that
appellant desired to continue the appeal; appellant’s counsel had not
abandoned the appeal but was representing appellant pro bono; and
appellant’s counsel had not filed a brief due to a family health situation
and recently acquired information concerning appellant’s case. The trial
court ordered appellant’s brief to be filed by January 13, 2017. On
December 8, 2016, we reinstated the appeal on our docket.
Appellant did not file a brief or request an extension of time by the new
briefing deadline of January 13, 2017. On January 20, 2017, we notified
appellant’s counsel that the brief was late and ordered her to file a brief by
January 30. Failure to do so, we admonished, would again result in the
abatement of the appeal and remand of the cause to the trial court. On
January 30, appellant’s counsel filed a motion seeking an extension to
February 3 to file the brief. As reasons for the extension, the motion cited
counsel’s workload and a family medical emergency. From statements in
the motion regarding counsel’s workload, it is also apparent counsel has
continued to accept new cases. We granted the requested extension, but
appellant’s counsel did not file a brief.
Thereafter, on February 14, 2017, this Court’s clerk contacted appellant’s
counsel by telephone. In their conversation, counsel readily
acknowledged the brief was past due. She promised to file the brief by
February 15, 2017. Counsel has not filed the brief, and has not further
communicated with this Court.
With that history as background, the Court issues this order. Rosalind A.
Kelly, State Bar of Texas number 11237580, is directed to file appellant's
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brief in this cause, in accordance with Rule 38.1 of the Texas Rules of
Appellate Procedure, no later than Monday, March 20, 2017. No motion
for extension of time will be considered. If Rosalind A. Kelly fails to file the
brief by March 20, 2017, the Court will initiate contempt proceedings
against her for the failure and refusal to obey the Court's order. See Tex.
R. App. P. 38.8(b)(4). The Court may also take such further actions as the
Court finds appropriate, which may include the filing of a grievance against
Rosalind A. Kelly with the State Bar of Texas.
It is so ordered.
1. TEX. PENAL CODE ANN. § 49.04(a), 49.09(b)(2) (West Supp. 2016).
2. The appeal was transferred from the Second Court of Appeals to this
Court, under an order of the Supreme Court of Texas. See TEX. GOV’T
CODE ANN. § 73.001 (West 2013); TEX. R. APP. P. 41.3 (precedent of
transferor court).
3. See Gomez v. State, No. 07-16-00156-CR, 2016 Tex. App. LEXIS
6736, at *2 (Tex. App.—Amarillo June 9, 2016, order) (not designated for
publication) (ordering the trial court to determine on remand, inter alia, (1)
whether appellant desires to prosecute the appeal; (2) whether retained
counsel has abandoned the appeal; (3) whether appellant is indigent; (4)
if appellant is indigent, whether new counsel should be appointed to
represent appellant on appeal; and (5) whether appellant is entitled to
have the reporter’s record furnished without charge).
4. See Gomez v. State, No. 07-16-00156-CR, 2016 Tex. App. LEXIS
12121, at *2-3 (Tex. App.—Amarillo Nov. 9, 2016, order) (not designated
for publication) (ordering the trial court on remand to determine (1)
whether appellant desires to prosecute the appeal; (2) whether appellant
is indigent and entitled to appointment of counsel; (3) whether retained
counsel has abandoned the appeal; (4) whether appellant failed to make
the necessary arrangements for filing a brief; (5) the reason for the failure
to file appellant’s brief; (6) if appellant is indigent, whether new counsel
should be appointed to represent appellant on appeal; and (7) the date
the Court may expect appellant’s brief to be filed).
A copy of the order was delivered to Rosalind A. Kelly by electronic mail, first-
class United States mail, and certified mail.
Rosalind A. Kelly has not filed a brief for appellant in the appeal as ordered, nor
has she communicated any reason for failing to file the brief. Consequently, she
appears to be in contempt for failing to obey the March 2, 2017 order of this Court.
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Accordingly, the Court now orders that Rosalind A. Kelly, State Bar of Texas
number 11237580, shall appear in person in the courtroom of this Court at 501 S.
Fillmore, Amarillo, Potter County, Texas, on Monday, April 17, 2017, at 9:00 a.m., to
then and there show cause, if any she has, why she should not be held in contempt and
sanctions imposed for her failure to obey the March 2, 2017 order of this Court.
IT IS SO ORDERED.
Per Curiam
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