Marcus Anthony Perkins v. State ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00784-CR
Marcus Anthony Perkins, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
NO. C-1-CR-12-216472, HONORABLE BRANDY MUELLER, JUDGE PRESIDING
ORDER AND MEMORANDUM OPINION
PER CURIAM
Appellant filed his notice of appeal on November 30, 2012, the clerk’s record was
filed January 2, 2013, and the reporter’s record was filed March 25, 2013. On August 9, after
appellant’s attorney failed to respond to a late-brief notice sent in May, we abated the appeal to the
trial court for a hearing pursuant to rule 38.8. See Tex. R. App. P. 38.8(b)(3). On October 3, we
received a supplemental record containing the trial court’s findings in which the court stated that
counsel said he had been unable to speak to appellant but that there was “no indication that
Mr. Perkins wished to abate the appeal, however.” We reinstated the case, and on February 13,
counsel informed us that he had still had no contact from appellant but that he would file a brief on
appellant’s behalf; March 17 was set as the brief deadline. On March 24, we sent counsel another
late-brief notice, asking for a response by April 3. On April 14, counsel called to inform us that he
would be filing a motion for extension of time by April 18. To date, the brief has not been tendered,
and a motion for extension of time has not been filed.
Because we do not have a trial-court finding that appellant no longer wishes to
prosecute his appeal, we may not proceed to consider the appeal without briefing. See id.
R. 38.8(b)(4) (appellate court “may consider the appeal without briefs” if trial court determines that
appellant “no longer desires to prosecute the appeal”). We thus must abate the appeal once again.
See id. R. 38.8(b)(2) (if brief is not timely filed, appellate court “must order the trial court to
immediately conduct a hearing to determine whether the appellant desires to prosecute his appeal,
whether the appellant is indigent, or, if not indigent, whether retained counsel has abandoned the
appeal, and to make appropriate findings and recommendations”). The trial court shall hold a
hearing pursuant to rule 38.8 on or before June 2, 2014, and shall determine whether appellant
wishes to abandon his appeal and, if not (or if it is unclear), the date by which counsel will file
appellant’s brief. Should counsel fail to file a brief by that date, we will institute contempt
proceedings against him. See id. R. 38.8(b)(4) (based on trial court’s findings and recommendations,
appellate court “may act appropriately to ensure that the appellant’s rights are protected, including
initiating contempt proceedings against appellant’s counsel”).
It is ordered May 2, 2014.
Before Justices Puryear, Goodwin, and Field
Abated and Remanded
Filed: May 2, 2014
Do Not Publish
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