Johnathan Ross Nickerson v. State ( 2014 )

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Johnathan Ross Nickerson v. The State of Texas Appellate case number: 01-14-00096-CR Trial court case number: 1238640 Trial court: 177th District Court of Harris County Appellant’s brief was originally due on March 24, 2014. On March 24, 2014, appellant filed a “Motion to Extend Time to File Appellant’s Brief,” requesting a 60-day extension of the deadline for filing his brief. We granted the motion the same day, making the deadline for filing appellant’s brief May 23, 2014. On May 23, 2014, appellant filed a “Second Motion to Extend Time to File Appellant’s Brief.” Although styled as a second motion, the motion is identical to appellant’s March 24, 2014 motion, except that the second motion acknowledges that a previous extension has been granted. In the motion, appellant contends that his brief “is presently due on March 24, 2014,” and he “requests an extension of time of 60 days from the present date, i.e. March 24, 2014.” Appellant further contends, as he did in his first motion, that the reporter’s record on file with the Court is a partial, rather than a complete, record, and that he “is coordinating with the trial reporter to obtain the rest of the record.” Appellant fails, however, to either state what is missing from the reporter’s record or otherwise inform the Court of how the reporter’s record is incomplete. Further, the court reporter has certified that each volume of the reporter’s record “contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter’s Record,” and there are no volumes that appear to be missing from the record filed with the Court. See TEX. R. APP. P. 34.6(a)(1) (stating “the reporter’s record consists of the court reporter’s transcription of so much of the proceedings, and all of the exhibits, that the parties to the appeal designate”), (b)(1) (requiring that appellant request portions of proceedings to be included in reporter’s record), 35.3(b)(1) (imposing duty on reporter to prepare record after appellant requests preparation of record). Appellant has neither presented any facts that were not presented in his first motion for extension nor shown that the reporter’s record on file with the Court is incomplete. Appellant has therefore not presented any facts that would reasonably explain the need for a second 60-day extension. See TEX. R. APP. P. 10.5(b)(1)(C) (requiring motion for extension to state facts relied on to reasonably explain need for extension), 38.6(d) (authorizing extensions of time to file brief if appellant files motion in compliance with Rule 105.(b)). Accordingly, we deny appellant’s second motion for extension of time. Unless appellant, within 10 days of the date of this order, files either his brief or a proper motion for extension of time, this appeal may be abated for a hearing pursuant to Rule 38.8(b). See TEX. R. APP. P. 38.8(b). It is so ORDERED. Judge’s signature: /s/ Sherry Radack Acting individually  Acting for the Court Date: May 30, 2014