Charles Henry Jones v. State ( 2014 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Charles Henry Jones v. The State of Texas
Appellate case number: 01-13-00984-CR
Trial court case number: 1163962
Trial court: 339th District Court of Harris County
The complete record was filed in the above-referenced appeal on January 30,
2014, making appellant’s brief due on March 3, 2014. See TEX. R. APP. P. 4.1, 38.6(a).
On March 3, 2014, appellant’s appointed counsel, Cheri Duncan, filed a motion for
extension of time, requesting an extension until April 3, 2014 to file the brief, which we
granted. On April 3, 2014, appellant filed a second motion for extension, requesting an
extension until May 3, 2014. We granted the second motion on April 4, 2014, extending
the deadline for filing appellant’s brief to May 5, 2014 and notifying appellant that no
further extensions would be granted absent exceptional circumstances.
On May 5, 2014, appellant filed a third motion for extension, requesting another
30-day extension, to June 5, 2014, to file appellant’s brief. We granted the motion the
same day and notified appellant that no further extensions would be granted. We further
notified appellant that failure to file the brief by June 5, 2014 would result in a late brief
abatement hearing pursuant to Texas Rule of Appellate Procedure 38.8.
Nevertheless, on June 9, 2014, appellant’s appointed counsel filed a fourth motion
for extension of time to file appellant’s brief, requesting an extension until July 7, 2014.
In the motion, counsel contends that an extension is warranted because she has been
working on other matters which were prioritized over this appeal and it was therefore
“not possible in the allotted time to review the lengthy record and research potential
issues in this” appeal.
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In light of the previous extensions granted to counsel and the admonishments that
no further extensions would be granted, we DENY appellant’s motion for extension. See
Sandoval v. State, No. 07-11-0136-CR, 2011 WL 6059804, at *1 n.2 (Tex. App.—
Amarillo Dec. 6, 2011, order) (not designated for publication) (“This Court does not
consider a busy work schedule as good cause for granting a subsequent motion to extend
the time to file a brief.”); Newfield v. State, 766 S.W.2d 408, 407–09 (Tex. App.—Dallas
1989, order), pet. dism’d, improvidently granted, 817 S.W.2d 63 (Tex. Crim. App. 1991)
(denying motion for extension of time to file brief when party requested extension based
on counsel’s workload); Hubbard v. State, 649 S.W.2d 167, 169 (Tex. App.—Dallas
1983, no writ) (same); In re Halsey, 646 S.W.2d 306, 308 (Tex. App.—Dallas 1983, orig.
proceeding) (“We recognize that many criminal law practitioners maintain heavy trial
and appellate case loads. Yet a competent practitioner must balance his docket so that all
clients receive proper attention. Counsel’s employment or appointment on behalf of
other clients awaiting trial provides no justification for neglecting his duties to the
appellate court or the interests of clients whose cases are on appeal. . . . The court will
not permit counsel unlimited discretion to put the interest of other and apparently more
recent clients ahead of those whose appeals are pending.”).
We therefore abate the appeal and remand for the trial court to immediately
conduct a hearing at which a representative of the Harris County District Attorney’s
Office and appellant’s counsel, Cheri Duncan, shall be present. TEX. R. APP. 38.8(b)(2).
Appellant shall also be present for the hearing in person or, if appellant is incarcerated, at
the trial court’s discretion, appellant may participate in the hearing by closed-circuit
video teleconferencing.1
The trial court is directed to:
(1) determine whether appellant still wishes to prosecute the appeal;
(2) if appellant does wish to prosecute the appeal, determine whether good cause
exists to relieve Cheri Duncan of her duties as appellant’s counsel, specifically
addressing whether counsel’s failure to timely file a brief constitutes good
cause for removal;
a. if good cause exists to remove counsel, enter a written order
relieving Cheri Duncan of her duties as appellant’s counsel,
including in the order the basis for finding good cause for her
1 Any such teleconference must use a closed-circuit video teleconferencing system
that provides for a simultaneous compressed full motion video and interactive
communication of image and sound between the trial court, appellant, and any
attorneys representing the State or appellant. On request of appellant, appellant
and his counsel shall be able to communicate privately without being recorded or
heard by the trial court or the attorney representing the State.
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removal, and appoint substitute appellate counsel at no expense to
appellant;
b. if good cause does not exist to remove counsel, provide a final
deadline by which Cheri Duncan must file appellant’s brief, which
shall be no more than 20 days from the date of the hearing;
(3) make any other findings and recommendations the trial court deems
appropriate; and
(4) enter written findings of fact, conclusions of law, and recommendations as to
these issues, separate and apart from any docket sheet notations.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), 26.04(j)(2) (West Supp.
2013); TEX. R. APP. P. 38.8(b).
The trial court shall have a court reporter record the hearing and file the reporter’s
record with this Court within 30 days of the date of this order. The trial court clerk is
directed to file a supplemental clerk’s record containing the trial court’s findings and
recommendations with this Court within 30 days of the date of this order. If the hearing
is conducted by video teleconference, a certified video recording of the hearing shall also
be filed in this Court within 30 days of the date of this order.
The appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket when the
supplemental clerk’s record and the reporter’s record of the hearing are filed in this
Court.
If Cheri Duncan files a brief on appellant’s behalf in this Court and a copy of such
brief in the trial court, which brief complies with Texas Rule of Appellate Procedure
38.1, no later than 5:00 p.m. on July 8, 2014, together with a motion requesting that we
withdraw this Order of Abatement, we may reconsider and withdraw this order and
reinstate the appeal.
The court coordinator of the trial court shall set a hearing date, which shall be no
later than July 15, 2014, and notify the parties and the Clerk of this Court of such date.
It is so ORDERED.
Judge’s signature: /s/ Justice Evelyn V. Keyes
 Acting individually  Acting for the Court
Date: June 23, 2014
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