John Gess v. the State of Texas ( 2024 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-24-00097-CR
JOHN GESS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2021-422,658, Honorable William R. Eichman II, Presiding
July 16, 2024
ORDER OF ABATEMENT AND REMAND
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Appellant, John Gess, appeals his conviction for online solicitation of a minor1 and
sentence to four years of confinement. Appellant’s brief was originally due May 6, 2024,
but we granted Appellant’s appointed counsel two extensions to file a brief. By letter of
June 6, 2024, we admonished Appellant’s counsel that failure to file a brief by July 5 could
result in the appeal being abated and the cause remanded to the trial court for further
1 See TEX. PENAL CODE ANN. § 33.021(b).
proceedings without further notice. On July 5, 2024, Appellant’s counsel filed a third
motion requesting an extension to August 5 to file a brief.
We deny Appellant’s third motion for extension, abate the appeal, and remand the
cause to the trial court for further proceedings. See TEX. R. APP. P. 38.8(b)(2), (3). Upon
remand, the trial court shall determine the following:
1. whether Appellant still desires to prosecute the appeal;
2. whether Appellant is indigent;
3. why a timely appellate brief has not been filed on behalf of Appellant;
4. whether Appellant’s counsel has abandoned the appeal;
5. whether Appellant has been denied the effective assistance of counsel;
6. whether new counsel should be appointed; and
7. if Appellant desires to continue the appeal, the date the Court may expect
Appellant’s brief to be filed.
The trial court is also directed to enter such orders necessary to address the
aforementioned questions. So too shall it include its findings on those matters in a
supplemental record and cause that record to be filed with this Court by September 15,
2024. If it is determined that Appellant desires to proceed with the appeal, is indigent,
and has been denied the effective assistance of counsel, the trial court may appoint new
counsel; the name, address, email address, phone number, and state bar number of any
newly-appointed counsel shall be included in the aforementioned findings.
2
Should Appellant’s counsel file a brief on or before August 15, 2024, she is directed
to immediately notify the trial court of the filing, in writing, whereupon the trial court shall
not be required to take any further action.
It is so ordered.
Per Curiam
Do not publish.
3