Raul Martinez v. State ( 2002 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-01-00485-CR

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In re Thomas J. Barry



Raul Martinez, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 1010920, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

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O R D E R

PER CURIAM

This is a contempt proceeding ancillary to Raul Martinez's appeal from a judgment of conviction for aggravated assault. The subject of this proceeding is Thomas J. Barry, appellant's counsel.

Appellant's brief in this cause was originally due November 1, 2002. The time for filing appellant's brief in this cause was extended two times on counsel's motion. On February 1, 2002, in granting the second motion, this Court ordered counsel to tender a brief on appellant's behalf no later than February 20, 2002. Counsel failed to file a brief as ordered. Therefore, on March 22, 2002, this Court entered an order requiring counsel to appear in person before this Court on April 17, 2002, to show cause why he should not be held in contempt and sanctions imposed for his failure to obey the February 1, 2002, order of this Court.

The show-cause hearing was held and counsel appeared as ordered. Counsel offered no plausible explanation for his failure to obey the Court's order. Counsel represented to the Court that he would file his brief by 5:00 p.m. on April 19, 2002. The Court ordered counsel to tender a brief by that date and time. Counsel did not do so. On April 23, 2002, this Court found Thomas J. Barry to be in contempt and imposed a fine of $500. To date, no brief has been tendered for filing on appellant's behalf.

We now find that Thomas J. Barry, by his contumacious behavior, has rendered and continues to render ineffective assistance to his client. Therefore, the district court is instructed to promptly appoint substitute counsel to represent appellant on this appeal. The district court's order appointing substitute counsel shall be forwarded to the Clerk of this Court no later than May 3, 2002. The time for substitute counsel to file appellant's brief is extended to May 31, 2002. The Clerk is instructed to deliver a copy of this order to the Chief Disciplinary Counsel of the State Bar of Texas.

It is ordered April 23, 2002.

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

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