David Leon Franklin v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00404-CR
DAVID LEON FRANKLIN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F47396
ORDER
The appellant’s brief in this case was originally due on January 30, 2014.
Appellant’s counsel has now filed his fifth motion for extension of time to file the
appellant’s brief.
On January 31, 2014, appellant’s counsel filed his first motion for extension of
time to file the appellant’s brief and was granted an extension through March 3, 2014.
On March 4, 2014, appellant’s counsel filed a second motion for extension of time
to file the appellant’s brief and was granted an extension through April 2, 2014. The
Clerk of the Court’s March 5, 2014 letter to appellant’s counsel stated, “Any further
motions requesting an extension of time to file a brief will be disfavored and will rarely
be granted.”
On April 1, 2014, appellant’s counsel filed a third motion for extension of time to
file the appellant’s brief. Appellant’s counsel explained his need for an extension as
follows: “Counsel for Appellant was contacted by a family member that the Appellant
did not wish to pursue the appeal. Counsel for Appellant needs additional time to
contact Appellant to confirm.” Appellant’s counsel was granted an extension through
May 2, 2014. The Clerk of the Court’s April 9, 2014 letter to appellant’s counsel again
stated, “Any further motions requesting an extension of time to file a brief will be
disfavored and will rarely be granted.”
On May 1, 2014, appellant’s counsel filed a fourth motion for extension of time to
file the appellant’s brief. Appellant’s counsel explained his need for an extension as
follows:
Counsel for Appellant has made numerous attempts to contact Ms.
Anderson at the James Bradshaw State Jail to request a phone consult with
Appellant but the facility refuses to cooperate. Authorities at the State Jail
refuse to place Counsel for Appellant in contact with the proper person to
arrange the consult or even leave a message for this person. Counsel for
Appellant has filed an application for a Bench Warrant with the trial court
in order to facilitate contact with the Appellant. Counsel for Appellant
needs additional time to contact Appellant to confirm if he does or does
not wish to proceed with the appeal.
Appellant’s counsel was granted an extension through June 1, 2014. The Clerk of the
Court’s May 7, 2014 letter to appellant’s counsel stated, “Absent extraordinary
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circumstances, no further motions for extension of time to file the appellant’s brief will
be entertained.”
On June 2, 2014, appellant’s counsel filed a fifth motion for extension of time to
file the appellant’s brief. Appellant’s counsel explains his need for an extension as
follows:
Counsel for Appellant has made numerous attempts to contact Ms.
Anderson at the James Bradshaw State Jail to request a phone consult with
Appellant but the facility refuses to cooperate. Authorities at the State Jail
refuse to place Counsel for Appellant in contact with the proper person to
arrange the consult or even leave a message for this person. Counsel for
Appellant has filed an application for a Bench Warrant with the trial court
in order to facilitate contact with the Appellant. The trial court has not yet
bench warranted Appellant in order for Counsel to discuss his appeal.
The Texas Department of Criminal Justice – Institutional Division refuses
even to speak with the trial court to coordinate access. The trial court has
made numerous attempts to facilitate contact with the Appellant, all to no
avail. Counsel for Appellant still needs additional time to contact
Appellant to confirm if he does or does not wish to proceed with his
appeal.
Because appellant’s counsel has provided the same explanation for his need for
an extension of time in his fifth motion as he did in his fourth motion and seems to be
no closer to resolving the issue, we deny the fifth motion for extension of time to file the
appellant’s brief. Furthermore, because appellant’s brief has still not been filed, we
abate this appeal to the trial court to conduct any necessary hearings within 21 days of
the date of this order in accordance with Texas Rule of Appellate Procedure 38.8(b)(2)
and (3). TEX. R. APP. P. 38.8(b)(2), (3).
The supplemental clerk’s and reporter’s records required by the rule, if any, are
ordered to be filed within 35 days of the date of this Order. See id.
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PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed June 12, 2014
Do not publish
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