       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-19-00017-CR


                              Yordanys Avila-Trujillo, Appellant

                                                v.

                                  The State of Texas, Appellee


               FROM THE 274TH DISTRICT COURT OF HAYS COUNTY
         NO. CR-17-0881, THE HONORABLE GARY L. STEEL, JUDGE PRESIDING



                                           ORDER


PER CURIAM

               This appeal, which was initially filed on January 7, 2019, was previously abated

on May 16, 2019, because appellant’s initial appellate counsel had not filed status reports

requested by this Court or responded to our notices, resulting in a delay in filing of the clerk’s

record and reporter’s record. After the trial court conducted the required hearing under Rule 38.8,

new appellate counsel was appointed.

               The clerk’s record and reporter’s record were subsequently filed, making

appellant’s brief originally due on July 26, 2019. On August 15, 2019, this Court sent a notice to

appellant’s new appointed counsel, Robert A. Caine, informing him that appellant’s brief was

overdue and that a failure to file a satisfactory response by August 26, 2019, would result in the

referral of this case to the trial court for a hearing under Rule 38.8(b) of the Texas Rules of

Appellate Procedure. No response was filed.
               Accordingly, we abated the case a second time for the trial court to conduct a

hearing, as provided by Rule 38.8. While the case was abated, Mr. Caine submitted a motion to

rescind or abate this Court’s order abating the case, representing that he “was in a two-week jury

trial around the time the brief was due and dropped the ball on this one, and requests an

extension to October 18, 2019, to file his brief.” (Emphasis added.) Because the case was

abated, the motion was received but not filed, and the trial court proceeded to conduct the Rule

38.8 hearing, as we had ordered. The supplemental reporter’s record from the hearing reflects that

at the hearing Mr. Caine likewise represented to the trial court that he had requested from this

Court that we extend the deadline for 30 days until October 18 to file the brief. The trial court

found that “Mr. Caine’s representation is that the appeal is going forward and that Mr. Caine is

on top of it and should have it filed within at least 30 days of today.” (Emphasis added.)

               Instead of filing a brief for his client by October 18, 2019, as he represented to

both this Court and the trial court that he would, Mr. Caine filed a motion for extension of time

on October 17, seeking an extension until November 25, 2019—38 days after the date that he

represented to this Court and the trial court that he would file the brief, 122 days after the initial

brief deadline that was set after the case was abated the first time and Mr. Caine was appointed

as counsel, and 322 days after the appeal was filed. Mr. Caine did not adequately explain in his

motion for extension of time what has prevented him from filing the brief by the date that he

represented he would.

               Accordingly, we grant in part the motion for extension of time. We order Mr. Caine

to file appellant’s brief no later than November 4, 2019. If the brief is not filed by that date,

Mr. Caine may be required to show cause why he should not be held in contempt of court. See

Tex. R. App. P. 38.8(b)(4) (“[T]he appellate court may act appropriately to ensure that the

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appellant’s rights are protected, including initiating contempt proceedings against appellant’s

counsel.”).

              It is ordered on October 25, 2019.



Before Justices Goodwin, Baker, and Kelly

Do Not Publish




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