Walter Ray Bridges v. State of Texas ( 2011 )

Order filed November 10, 2011

                                                                       In The

  Eleventh Court of Appeals

                                                                   __________

                                                         No. 11-10-00338-CR

                                                    __________

                               WALTER RAY BRIDGES, Appellant

                                                             V.

                                      STATE OF TEXAS, Appellee

                                    On Appeal from the 90th District Court

                                                          Stephens County, Texas

                                                     Trial Court Cause No. 32,499

O R D E R

The jury found Walter Ray Bridges guilty of driving while intoxicated.  On November 2, 2010, the trial court set his punishment at confinement in the Stephens County Jail for a term of 120 days.  The trial court also assessed a fine of $2,000. By and through his court-appointed trial counsel, Lee Ann Marsh, appellant filed a notice of appeal on November 10, 2010.

The clerk’s record was filed in this cause on December 30, 2010, and the reporter’s record was filed on January 4, 2011.  The clerk of this court wrote a letter to the attorneys of record on January 4, 2011, advising them that the reporter’s record had been filed.  This letter specifically advised that appellant’s brief was due for filing on February 3, 2011.  Appellant did not file a brief by February 3, 2011, or a motion for extension of time to file appellant’s brief. The clerk of this court wrote a subsequent letter to the attorneys of record on February 17, 2011, advising them that, on the court’s own motion, the deadline for filing appellant’s brief was extended to March 21, 2011.  This letter further advised that the failure to file the appellant’s brief by March 21, 2011, “may result in counsel appearing at a hearing before this Court to explain the delay in preparation of Appellant’s brief.”

Appellant has not yet filed a brief in this cause.  Accordingly, this court entered an order on October 27, 2011, that directed appellant’s counsel, Lee Ann Marsh, “to either file the brief by November 10, 2011, 9:30 a.m., or appear in person on November 10, 2011, 9:30 a.m., in the 11th Court of Appeals Courtroom, third floor of the Eastland County Courthouse in Eastland, Texas, and be prepared to explain the inordinate delay in the preparation of appellant’s brief.”  Attorney Marsh did not comply with this court’s order of October 27, 2011, because she neither filed the appellant’s brief nor appeared in person by 9:30 a.m. on November 10, 2011.  Instead, Attorney Marsh filed a document entitled “Motion to Dismiss Appeal.”[1] Attorney Marsh also orally advised the clerk’s office that she would not be complying with this court’s order of October 27, 2011.  Her action of filing a motion to dismiss the appeal instead of either filing appellant’s brief or personally appearing by 9:30 a.m. on November 10, 2011, does not excuse her violation of this court’s order of October 27, 2011.

            On the morning of November 10, 2011, this court was informed for the first time that counsel, Scott Campbell, had been retained to represent appellant in May 2011. Attorney Campbell filed no entry of appearance with this court; Attorney Marsh did not file a motion to withdraw or substitute Attorney Campbell as the attorney of record in this appeal.  The appeal in this cause is abated for thirty days in order for the trial court to immediately conduct a hearing pursuant to Tex. R. App. P. 38.8(b) to determine whether appellant desires to prosecute his appeal and whether to make other appropriate findings and recommendations.  The trial court is directed to make specific findings in this regard as required by Rule 38.8(b). 

The clerk of the trial court is directed to prepare and forward a supplemental clerk’s record containing the written findings of the trial court and any relevant orders entered by the trial court.  The court reporter is directed to prepare and file a supplemental reporter’s record of the hearing. The supplemental records are due to be filed in this court on or before December 16, 2011.  Absent an opinion issued by this court dismissing the appeal, appellant’s brief will be due to be filed in this court thirty days after the supplemental records are filed in this court.

The appeal is abated.

                                                                                                PER CURIAM

November 10, 2011

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Kalenak, J.

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[1]We note that the motion is insufficient as a motion to voluntarily dismiss a criminal appeal because it is not signed by appellant as required by Tex. R. App. P. 42.2(a).