Opinion
01-22-00776-CR
09-07-2023
Troy E. Hollins v. The State of Texas
Trial court: 207th District Court of Comal County, Trial court case number: CR2020-054.
ORDER OF ABATEMENT
Amparo Guerra, Judge.
A jury convicted appellant, Troy E. Hollins, on two counts of the offense of engaging in organized criminal activity, and the trial court assessed his punishment at confinement for eighty years. Appellant filed a notice of appeal on September 1, 2022.
Appellant's brief was originally due on March 16, 2023. See Tex. R. App. P. 38.6(a). However, on March 16, 2023, appellant's court-appointed counsel filed a motion to extend time to file appellant's brief. Appellant's motion was granted by the Court and the deadline for filing his brief was extended to April 17, 2023. On April 18, 2023, appellant's court-appointed counsel filed a second motion to extend time to file appellant's brief. Appellant's second motion was granted by the Court and the deadline for filing his brief was extended to May 15, 2023.
On May 15, 2023, appellant's court-appointed counsel filed his third motion to extend time to file appellant's brief. Appellant's third motion was granted by the Court and the deadline for filing his brief was extended to June 14, 2023. The Court further notified appellant that the failure to file a brief by the extended deadline may result in the appeal being abated for the trial court to hold a hearing to determine the reason for the failure to file a brief. Despite the Court's notice, no brief was filed by the extended deadline. Instead, on June 15, 2023, appellant's court-appointed counsel filed a fourth motion to extend time to file appellant's brief.
The Court granted appellant's fourth motion to extend and the deadline for filing his brief was extended to July 15, 2023. Appellant was again notified that the failure to file a brief by the extended deadline may result in abatement of the appeal. Despite the Court's notice, appellant did not file a brief by the extended deadline. Accordingly, on August 17, 2023, the Clerk of this Court notified appellant that the time for filing his brief had passed, and notifying appellant that his appeal was subject to abatement if a brief was not filed within ten days of the notice.
In response to the Court's notice, appellant's appointed counsel, Kurt S. Hopke, did not file a brief on appellant's behalf. On August 29, 2023, appellant's appointed counsel filed a fifth motion for extension of time to file appellant's brief. In his fifth motion, appellant requests that the deadline for filing a brief be extended "an additional thirty days."
Appellant's fifth motion to extend his brief deadline is denied. Accordingly, we abate the appeal and remand for the trial court to, within twenty days of the date of this order, conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's appointed counsel, Kurt S. Hopke, shall be present. Tex.R.App.P. 38.8(b)(2). Appellant shall also be present for the hearing in person or, if he is incarcerated, at the trial court's discretion, he may participate in the hearing by closed-circuit video teleconferencing.
Any such teleconference must use a closed-circuit video teleconferencing system that provides for a simultaneous compressed full motion video and interactive communication of image and sound between the trial court, appellant, and any attorneys representing the State or appellant. On his request, appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the State's attorney.
The trial court is directed to:
(1) determine whether appellant wishes to prosecute the appeal;
(2) if appellant wishes to prosecute the appeal, determine whether good cause exists to relieve Kurt S. Hopke of his duties as appellant's counsel;
(3) if good cause exists, enter a written order relieving Kurt S. Hopke of his duties as appellant's counsel, including in the order the basis for and finding of good cause, and appoint substitute appellate counsel at no expense to appellant;
(4) if good cause does not exist, set a date when appellant's brief is due, regardless of whether this Court has yet reinstated the appeal and no later than 30 days from the date of the hearing;
(5) make any other findings and recommendations the trial court deems appropriate; and
(6) enter written findings of fact, conclusions of law, and recommendations as to these issues.See Tex. Code Crim. Proc. Ann. art. 1.051(a), (c), (d)(1), 26.04(j)(2); Tex.R.App.P. 38.8(b).
The trial court shall have a court reporter record the hearing and file the reporter's record with this Court within thirty days of the date of this order. The trial court clerk is directed to file a supplemental clerk's record containing the trial court's findings and recommendations with this Court within thirty days of the date of this order.
The appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket when the supplemental clerk's record and the reporter's record of the hearing are filed in this Court. The court coordinator of the trial court shall set a hearing date and notify the parties and the Clerk of this Court of such date.
It is so ORDERED.