Javier Noel Campos v. State ( 2014 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Javier Noel Campos v. The State of Texas
Appellate case number: 01-13-00415-CR, 01-13-00416-CR, 01-13-00417-CR
Trial court case number: 1328806, 1328807, 1308988
Trial court: 184th District Court of Harris County
The complete record was filed in the above-referenced appeals on September 10, 2013,
making appellant’s brief due on October 10, 2013. See TEX. R. APP. P. 38.6(a). On October 18,
2013, the Clerk of this Court sent appellant a notice informing him that his brief was late,
requiring a response within 10 days, and notifying appellant that if he failed to provide a
satisfactory response, the Court would be required to order the trial court to conduct a hearing
pursuant to Rule 38.8. See TEX. R. APP. P. 38.2(b)(2), (3). Appellant responded by filing a
motion for extension of time to file his brief, requesting that the deadline be extended to
December 31, 2013. The Court granted the motion, ordered appellant to file his brief by
December 31, 2013 and, because of the length of the extension provided, stated that no further
extensions would be granted absent extraordinary circumstances. On December 30, 2013,
appellant filed a second motion for extension, requesting that the deadline be extended to
February 17, 2014. The Court granted the motion in part, ordered appellant to file his brief by
February 14, 2014, and stated that no further extensions would be granted. The Court also
informed appellant that failure to file a brief would result in abatement and a hearing by the trial
court. See TEX. R. APP. P. 38.2(b)(2), (3). On February 14, 2014, appellant filed a third motion
for extension, requesting that the deadline be extended to May 19, 2014. The Court granted the
motion in part, ordered appellant to file his brief by March 19, 2014, and stated that no further
extensions would be granted. On March 19, 2014, appellant filed his fourth motion for
extension, requesting an extension until April 11, 2014. In support of his motion, appellant cites
his abundant workload and the voluminous record in the above referenced appeals. The date
appellant filed his current motion for extension is 160 days after the original deadline in which to
file his brief.
Absent extraordinary circumstances, this Court does not ordinarily grant extensions of
time beyond 90 days to file a brief. Further, “an allegation of workload, standing alone, does not
constitute good cause for an extension.” Newfield v. State, 766 S.W.2d 408, 408–09 (Tex.
App.—Dallas 1989, order). “[I]in limited situations, for limited periods of time, workload may
indeed be ‘good cause’ or even an ‘exceptional circumstance’ that justifies an extension to file a
brief.” Id. “Nevertheless, appellate counsel cannot justifiably apply for repeated extensions in a
case so that he may attend to other business.” In re Halsey, 646 S.W.2d 306, 308 (Tex. App.—
Dallas 1983, orig. proceeding).
Here, appellant’s counsel has had more than five months in which to file a brief on
appellant’s behalf. Nevertheless, counsel has failed to file a brief and now requests an additional
time. Accordingly, we DENY appellant’s motion for extension of time to file appellant’s brief.
Because appellant’s brief is untimely, we 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, Wayne T. Hill, 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 wishes to prosecute the appeal;
(2) if appellant does wish to prosecute the appeal, determine whether good cause exists
to relieve Wayne T. Hill of his duties as appellant’s counsel, specifically addressing
whether counsel’s failure to file a brief, despite having had 160 days to file a brief as
of March 19, 2014, and counsel’s failure to comply with this Court’s order to file a
brief by March 19, 2014 constitutes good cause for his removal;
(3) if good cause exists, enter a written order relieving Wayne T. Hill of his duties as
appellant’s counsel, including in the order the basis for and finding of good cause,
and appoint substitute appellate counsel at no expense to appellant;
(4) if good cause does not exist, set a date certain when appellant’s brief is due,
regardless of whether this Court has yet reinstated the appeal and no later than 30
days from the date of the hearing;
(5) make any other findings and recommendations the trial court deems appropriate; and
(6) 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 25 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 25 days of the date of this order. If the hearing is conducted by video
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.
teleconference, a certified video recording of the hearing shall also be filed in this Court within
25 days of the date of this order.
The above-referenced appeals are abated, treated as closed cases, and removed from this
Court’s active docket. The appeals 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. The
court coordinator of the trial court shall set a hearing date and notify the parties and the Clerk of
this Court of such date.
It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes
 Acting individually  Acting for the Court
Date: April 8, 2014