Derrick Lynn Lewis v. State ( 2011 )

NO. 07-11-0444-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 29, 2011
______________________________
DERRICK LYNN LEWIS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 27TH DISTRICT COURT OF BELL COUNTY;
NO. 63971; HONORABLE JOE CARROLL, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Following a plea of not guilty, Appellant, Derrick Lynn Lewis, was convicted of
capital murder and punishment was assessed at life without parole. On March 7, 2011,
Appellant filed his notice of appeal. The appellate record has been filed and Appellant's
brief was originally due on August 17, 2011. After the Eleventh Court of Appeals
granted two extensions of time in which to file Appellant's brief, the brief was due on
October 10, 2011. As grounds for the first two requests for extensions, counsel cited
his work schedule as well as the transfer of this appeal from the Third Court of Appeals
to the Eleventh Court of Appeals.1 The appeal was then transferred to this Court.2 The
brief remained outstanding and by letter dated October 28, 2011, the Clerk of this Court
advised Appellant's counsel that the brief had not been filed and set a deadline of
November 7, 2011, in which to do so together with a Motion to Extend Time to File
Appellant's Brief. Counsel was cautioned that failure to timely file the brief and motion
would result in abatement of the appeal and remand of the cause to the trial court
without further notice pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of
Appellate Procedure. In response, on November 4, 2011, instead of filing Appellant's
brief, counsel filed a third Motion to Extend Time to File Appellant's Brief citing ”an
unusually heavy caseload."3
By letter dated November 7, 2011, the request for a third extension was denied;
however, counsel was given until November 17, 2011, in which to file the brief with the
unequivocal admonishment that failure to comply would result in abatement and
remand. Notwithstanding this Court's letters of October 28 and November 7, counsel
filed a fourth Motion to Extend Time to File Appellant's Brief requesting additional time
to prepare the brief. As grounds, counsel asserts that he needs additional time to
1
This appeal was originally transferred from the Third Court of Appeals to the Eleventh Court of Appeals
by an order of the Texas Supreme Court pursuant to its docket equalization efforts. Tex. Gov=t Code Ann.
' 73.001 (West 2005).
2
This appeal was subsequently transferred from the Eleventh Court of Appeals to this Court by an order
of the Supreme Court due to the earlier transfer of a companion case from the Third Court of Appeals to
the Seventh Court of Appeals.
3
This Court does not grant requests for subsequent extensions absent good cause. The normal press of
business is not considered good cause. See Curry v. Clayton, 715 S.W.2d 77, 79 (Tex.App.--Dallas
1986, no writ).
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prepare a new point of error which was raised in the brief of Appellant's co-defendant,
Andre Hamilton, but which had not previously occurred to counsel.
By Order of the Court, Appellant's fourth Motion to Extend Time to File
Appellant's Brief is denied. Instead, we now abate this appeal and remand the cause to
the trial court to determine the following:
1. whether Appellant desires to prosecute the appeal;
2. whether Appellant has been denied effective assistance of counsel
given counsel's failure to timely file the brief; and
3. whether Appellant is entitled to new appointed counsel.
Should it be determined that Appellant does want to continue the appeal and the trial
court determines he is entitled to new appointed counsel, the name, address, telephone
number, and state bar number of the newly-appointed counsel shall be provided to the
Clerk of this Court. The trial court shall execute findings of fact and conclusions of law,
and shall cause its findings, conclusions, and any necessary orders to be included in a
supplemental clerk's record to be filed with the Clerk of this Court by December 16,
2011. Finally, newly appointed counsel shall file Appellant's brief within thirty days after
the date of appointment.
It is so ordered.
Per Curiam
Do not publish.
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