                                 NUMBER 13-12-00368-CR

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI—EDINBURG

                                     IN THE MATTER OF
                                     REBECCA RUBANE1


                       On appeal from the 107th District Court
                            of Cameron County, Texas.


                                ORDER OF CONTEMPT
                 Before Justices Rodriguez, Benavides, and Perkes
                                 Order Per Curiam

      This is a contempt proceeding ancillary to appeal number 13-12-00368-CR, styled

Javier De La Rosa Jr. v. State of Texas, currently pending in this Court. Appellant is

represented on appeal by appointed counsel, Ms. Rebecca Rubane.                       Ms. Rubane is

appellant’s second court-appointed appellate counsel.               The trial court appointed Ms.




      1   Ancillary to Javier De La Rosa Jr. v. The State of Texas, 13-12-00368-CR.
Rubane as appellant’s counsel on January 13, 2014, and we ordered that appellant’s brief

was due to this Court on January 15, 2014.

       On February 13, 2014, Ms. Rubane filed her first motion for extension of time to

file appellant’s appellate brief citing her busy schedule.   This Court granted the motion

and ordered that appellant’s brief was due on March 28, 2014.       On March 31, 2014, Ms.

Rubane filed a second motion for extension of time to her appellant’s brief citing a need

to request and review appellant’s juvenile record. We granted this motion and ordered

that appellant’s brief was due on May 12, 2014.    On May 15, 2014, Ms. Rubane filed her

third motion for extension of time to file appellant’s brief.    In this motion, Ms. Rubane

informed the Court that she suffered from a serious illness that “greatly reduced” her

ability to work.   This Court granted Ms. Rubane’s motion and ordered appellant’s brief

due on June 26, 2014.      On June 26, 2014, Ms. Rubane failed to file appellant’s brief.

This Court made unsuccessful attempts to contact Ms. Rubane by telephone.          On July

1, 2014, this Court issued an order directing Ms. Rubane to file appellant’s brief by July

11, 2014.   On July 11, 2014, Ms. Rubane filed her “final” motion for extension of time to

file appellant’s brief.   Ms. Rubane cited continuing health concerns and medical

treatment as the reasons for her inability to file her brief.       This Court granted Ms.

Rubane’s motion and ordered her to file appellant’s brief by July 18, 2014. On July 18,

2014, Ms. Rubane failed to file her brief or any other motion.

       On July 22, 2014, this Court issued an order of abatement and remanded the case

to the trial court to hold a hearing to determine (1) whether appellant desires to prosecute

this appeal; (2) why appellant's counsel has failed to file a brief and whether counsel has


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effectively abandoned the appeal; (3) whether appellant has been denied effective

assistance of counsel; (4) whether appellant's counsel should be removed; and (5)

whether appellant is indigent and entitled to new court-appointed counsel. On August

4, 2014, the trial court held a hearing and found that (1) appellant would like to proceed

with his appeal; (2) Ms. Rubane had been ill; and (3) appellant has not been denied

effective assistance of counsel. The trial court further recommended that counsel be

allowed to stay as appellant’s current attorney and suggested a new deadline of August

18, 2014 for counsel to file her brief.    On August 11, 2014, this Court ordered Ms.

Rubane to file appellant’s appellate brief by August 18, 2014, or appear for a hearing to

show cause why she should not be held in contempt of court. On August 18, 2014, Ms.

Rubane filed an Anders brief related to this cause. Although the brief was marked as

“filed,” the Court notified Ms. Rubane that her Anders brief was not in compliance with

Kelly v. State.   See 436 S.W.3d 313, 315–22 (Tex. Crim. App. 2014).       On August 19,

2014, the Court sent a letter to Ms. Rubane notifying her of the deficiencies of the brief

and requested that she submit documentary evidence in compliance with Kelly by August

29, 2014.     On August 29, 2014, the clerk of the court sent a reminder e-mail

correspondence to Ms. Rubane about the Kelly compliance deadline.            Ms. Rubane

acknowledged the e-mail correspondence and replied that she would “file it soon.” Later

that evening, Ms. Rubane emailed the clerk of this court apologizing and stating that her

computer had “crashed,” would not be able to file her Kelly compliance certification by the

deadline, but would file it the following morning.   No filing was made.




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        On September 15, 2014, this Court issued an order to Ms. Rubane ordering her to

comply with the requirements set forth in Kelly and to notify this Court of her compliance

with the case law and provide documentary proof that she had complied with its

requirements.      The order further stated that if Ms. Rubane failed to file this notice by

September 19, 2014, she was ordered to appear in the Edinburg courtroom of this Court

at 9:00 a.m. on September 25, 2014 to show cause why she should not be held in

contempt of court. On September 19, 2014, Ms. Rubane failed to file her requisite Kelly

notice with this Court.      Over the course of September 22 and 23, 2014, the clerk of this

Court attempted to contact Ms. Rubane by telephone to assist her with filing the requisite

Kelly notice. On September 23, 2014, Ms. Rubane telephoned the clerk of this Court to

notify her that she was ready to file her notice, but was experiencing technical difficulties

because her computer had again “crashed.”                      Later that day, Ms. Rubane filed a

document with this Court that was not in compliance with Kelly.                            The clerk again

telephoned Ms. Rubane to notify her of the deficiency.                   On September 24, 2014, Ms.

Rubane filed another document that did not comply with Kelly.

        At 9:00 a.m. on September 25, 2014, pursuant to its September 15, 2014 order,

this Court held a hearing in its Edinburg courtroom on this matter.2 Ms. Rubane was not

present.     Accordingly, this Court took judicial notice of the procedural and factual

histories of this case and found Ms. Rubane in contempt of this Court. Furthermore, in

light of the unique posture and extreme circumstances of the case, the Court stated that

it would fulfill the requisite duties under Kelly to ensure compliance.                       It is therefore


        2   A record was made of this hearing.   An electronic transcript of this hearing is on file with the
clerk of this Court.
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ORDERED, ADJUDGED, AND DECREED by the Thirteenth Court of Appeals that:

       (1) Rebecca Rubane is in contempt of this Court for willfully and
           intentionally failing to comply with (1) this Court’s order dated September
           15, 2014 by failing to comply with the requisites of Kelly v. State as
           outlined in the Court’s order and correspondence with Ms. Rubane and
           failing to appear before this Court on September 24, 2014 to show cause
           why she should not be held in contempt.

       (2) Rebecca Rubane pay a fine of $500.00 to the Clerk of the Thirteenth
           Court of Appeals no later than 5:00 p.m. on October 31, 2014. In the
           event the fine is not timely paid, it shall be collectible in the manner
           provided by law.

       (3) For any future appearance before this Court, Rebecca Rubane shall
           fully comply with the Texas Rules of Appellate Procedure; and

       (4) Rebecca Rubane ensure that this Court has current contact information
           for her, including telephone number(s), email address, and business
           address.

IT IS FURTHER ORDERED that all costs of this proceeding shall be and are assessed

against Rebecca Rubane, for which execution may issue.

       It is so ORDERED.

                                                                       PER CURIAM

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of October, 2014.




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