Milton Whiting v. State ( 2014 )

Order filed June 24, 2014. In The Fourteenth Court of Appeals ____________ NO. 14-13-00256-CR ____________ MILTON WHITING, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1365102 ORDER A jury convicted appellant of aggravated sexual assault of a child and assessed punishment at confinement for sixty years in the Institutional Division of the Texas Department of Criminal Justice. On January 31, 2013, the trial court imposed a sentence in accordance with the jury’s verdict. Appellant filed a timely motion for new trial and notice of appeal. Appellant is represented on appeal by retained counsel, Andrew G. McGee. Appellant’s brief was originally due July 1, 2013. The court granted extensions of time to file appellant’s brief totaling 90 days, and we noted that no further extensions would be granted absent exceptional circumstances. No brief was filed. Instead, counsel filed a further request for extension of time to file appellant’s brief, but he did not allege any exceptional circumstances in the request. On October 10, 2013, this court ordered counsel to file appellant’s brief on or before November 4, 2013. No brief was filed. Counsel requested a further extension of time, alleging that he was preparing for an annual criminal law assessment test scheduled for November 4, 2013. An extension was granted until November 22, 2013. No brief was filed. On December 2, 2013, counsel and the trial court were notified that the brief was past due. Counsel filed no response. On December 19, 2013, this court abated the appeal and directed the trial court to conduct a hearing to determine the reason for the failure to file a brief pursuant to Texas Rule of Appellate Procedure 38.8(b). On January 15, 2014, a record of the hearing was filed. At the hearing, counsel advised the court that the brief had not been filed because counsel was busy with two trial matters. Appellant confirmed to the court that he wished counsel to remain his attorney on appeal. Counsel assured the court that only minor portions of the brief needed to be completed and he would finish within five days. Accordingly, the appeal was reinstated and appellant’s brief was set due on January 21, 2014. No brief was filed. On February 6, 2014, this court again abated the appeal for another brief hearing. A record of the hearing was filed February 22, 2014. At the hearing, counsel informed the court he would file the brief in two days, by the following Monday, February 24, 2014. No brief was filed. The appeal was abated a third time. At the hearing on April 10, 2014, counsel informed the court that he had recently resolved a major driving-while-intoxicated case. Counsel again stated that a majority of the brief had been completed, and he said he could file the completed portion that day. Appellant advised the court that he wished Andrew McGee to remain as his counsel on appeal. The appeal was reinstated and appellant’s brief was set due. To date, no brief has been filed, and counsel has not responded to this court’s past due notice. It is now almost a full year past the original due date for appellant’s brief. The trial court has conducted three hearings, at which appellant was present by video teleconference, concerning counsel’s failure to file a brief. Counsel repeatedly has confirmed that he will file appellant’s brief, but despite repeated assurances no brief has been filed. Appellant has stated that he wishes counsel to remain on the appeal. Accordingly, we issue the following order. We order Andrew G. McGee to file a brief with the clerk of this Court on or before July 18, 2014. If counsel does not timely file appellant’s brief as ordered, the court will consider the appeal without briefs. See Tex. R. App. P. 38.8(b)(4). PER CURIAM Panel consists of Chief Justice Frost and Justices Donovan and Brown.