Dylan Scott Garrett v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00082-CR
In re Joseph E. Garcia, III
Dylan Scott Garrett, Appellant
v.
The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2016-500, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
ORDER
PER CURIAM
This is a contempt proceeding ancillary to the appeal of Dylan Scott Garrett. The
subject of this proceeding is Joseph E. Garcia, III, appellant’s attorney.
Appellant filed his notice of appeal on January 27, 2017, and his brief was due
May 10, 2017—12 months ago. After two abatements to the trial court for hearings pursuant to
Texas Rule of Appellate Procedure 38.8, on March 30, 2018, we ordered counsel to file
appellant’s brief no later than April 20, 2018. After Garcia failed to file the brief by April 20, we
ordered him to appear in person to show cause why he should not be held in contempt and have
sanctions imposed for his failure to obey our March 30, 2018 order, although we would have
withdrawn the show-cause order if Garcia filed the brief on or before May 7.
The show-cause hearing was held in the court on May 9, 2018, and Garcia
appeared as ordered. After consideration of the record and Garcia’s explanation for failing to
comply with our previous order, on May 11, 2018, we again ordered Garcia to appear in person
before this Court on Wednesday, May 23, 2018, at 1:30 p.m., in the Third Court of Appeals
courtroom, to show cause why he should not be held in contempt and have sanctions imposed for
his failure to obey our March 30, 2018 order. This second show-cause order provided that
Garcia would be relieved of his obligation to appear before this Court as ordered above if the
Clerk of this Court received either a motion to dismiss that is compliant with Texas Rule of
Appellate Procedure 42.2 or an appellant’s brief that is compliant with Texas Rule of Appellate
Procedure 38.1 no later than 8:00 a.m. on May 23, 2018.
The show-cause hearing was held in this Court on May 23, 2018. Garcia failed to
appear as ordered. At the time of the hearing, neither a rules-compliant motion to dismiss nor a
rules-compliant appellant’s brief had been filed. On May 24, 2018, Garcia filed a motion to
dismiss signed by appellant and Garcia. See Tex. R. App. P. 42.2(a).
After consideration of the record and Garcia’s explanation at the first show-cause
hearing for his failure to comply with our previous orders, we specifically find that
Joseph E. Garcia, III, is in contempt for violating this Court’s order of March 30, 2018, which
was sufficiently clear and specific in its requirement that appellant’s brief was to be filed by
April 20, 2018. See Tex. Gov’t Code § 21.002.
Joseph E. Garcia, III, is hereby fined $500, payable to the Clerk of the Court of
Appeals, Third District of Texas, on or before June 25, 2018, by 5:00 p.m. See id. § 21.002(b).
If Garcia fails to pay the $500 fine by June 25, 2018, he shall be confined in a county jail for a
sufficient time to discharge the full amount of the fine at the daily rate allowed for prisoners
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serving misdemeanor sentences. See In re Miles, 55 S.W.3d 203, 204 (Tex. App.—Houston [1st
Dist.] 2001, order) (per curiam); see also Tex. Gov’t Code § 21.002(b). It is ordered that all
writs and other process necessary for the enforcement of this judgment be issued.
We note that this is not the first time that this Court has held Garcia in
contempt. See In re Garcia, No. 03-12-00320-CR, 2013 WL 865106, at *1 (Tex. App.—Austin
Feb. 28, 2013, order) (per curiam). We advise the trial court to take these two contempt orders
into consideration before appointing Garcia as counsel in any future appeals.
It is ordered on May 24, 2018.
Before Justices Puryear, Pemberton, and Bourland
Do Not Publish
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