Melanie Brooke Holloway v. State

IN THE
TENTH COURT OF APPEALS
No. 10-18-00053-CR
MELANIE BROOKE HOLLOWAY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2016-1548-C1
ABATEMENT ORDER
Appellant’s brief was originally due on or before May 9, 2018. When no brief was
filed, the Court notified appellant by letter dated May 17, 2018 that the brief was late and
that, unless a brief or satisfactory response was received within 14 days, the Court must
abate the appeal and order the trial court to immediately conduct a hearing pursuant to
Texas Rule of Appellate Procedure 38.8(b)(2) and (3). See TEX. R. APP. P. 38.8(b)(2), (3).
No brief or response was filed.
On June 13, 2018, we abated the appeal to the trial court to conduct any necessary
hearings within 21 days of the date of the order pursuant to Rule 38.8(b)(2) and (3). See
id. Supplemental clerk’s and reporter’s records required by Rule 38.8(b)(2) and (3), if any,
were ordered to be filed within 35 days of the date of the order. See id. The trial court
eventually held the required hearing on August 3, 2018, and appellant’s counsel informed
the trial court that appellant’s brief would be filed by August 6, 2018 at 5:00 p.m.
We subsequently reinstated the appeal; however, when no brief was filed, the
Court notified appellant by letter dated August 16, 2018 that the brief was late and that,
unless a brief or satisfactory response was received within 14 days, the Court must again
abate the appeal and order the trial court to immediately conduct a hearing pursuant to
Rule 38.8(b)(2) and (3). See id. No brief was filed, but, on August 24, 2018, appellant filed
a motion for an extension of time until September 21, 2018 to file the appellant’s brief.
An extension of time until September 21, 2018 would have been a total of 165 days
to file the brief. The Rules of Appellate Procedure establish the norm that a brief should
be filed in 30 days. Id. at 38.6(a). Accordingly, on September 12, 2018, we denied
appellant’s motion for an extension of time to file the appellant’s brief and ordered that
appellant’s brief be filed no later than September 17, 2018. No brief has been filed.
Accordingly, we again abate this appeal to the trial court. The trial court is
ORDERED to conduct a hearing within 7 days of the date of this Order to determine:
1. why no brief has been filed;
2. whether appellant is receiving effective assistance of counsel;
3. whether to appoint new counsel for appellant; and
Holloway v. State Page 2
4. a date certain as to when appellant’s brief will be filed with this Court and
order counsel to file the brief on or before that date. See id. at 38.8(b)(2), (3).
The trial court shall also inform counsel that should counsel remain as appointed
counsel for appellant and another deadline to file appellant’s brief is missed, this Court
will abate this appeal to the trial court for a hearing to determine whether counsel should
be held in contempt of court.
The supplemental clerk’s and reporter’s records required by the Rule 38.8(b)(2)
and (3), if any, are ORDERED to be filed within 14 days of the date of this Order. See id.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed October 3, 2018
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