I have a case, Apellant claims to be indigent, trial court has had two hearings declaring her not indigent. She has retained counsel.
Appellant filed notice of Appeal and court record, now she will not pay for reporters record. Appeals Court has ordered Apellant to file a brief about 1,000 times. Apellant has not complied. Then the Court ordered me to file a brief stating they were going to consider appeal without Appellant's brief.
I field a short brief stating the Court should review the record for fundemental error and affirm the trial court.
Court then files order commanding Apellant to ask for an extension and file brief. Appellant has made no response.
The case is now in limbo. What can I do?
I don't think there's anything you can do if the coa wants to keep messing around with the case. I had a case like this not long ago. Our coa spent a long time before pulling the 38.8(b)(4) trigger. Kersh v. State, No. 2-04-246-CR, 2005 WL 3008435 (Tex.App. -Fort Worth November 10, 2005) (not published).
I have never tied this but how about a motion to dismiss for want of prosecution and dilatory tactics, laying out the history of the case? Presumably appellant is stalling to prevent the case becoming final, yet society has an interest in final convictions.
They told me in Kersh that dismissal was not an allowed option but they did acknowledge that there is a case from Waco that disagrees.
BTW, it may be more likely that the appellant just doesn't want to pay for an appellate brief.
Even in Scott, 167 S.W.3d 62, the Waco court did not actually dismiss the appeal. And your case sounds more like Scott than Peralta. The rules really need to be amended to prevent this type of delay because Rule 40.2 and 42.4 essentially encourage very slow movement of cases where timely re-trial (or finality) are necessary to "the proper administration of justice". The nice thing about the situation is the chance of success for the appellant is likely being exhausted along with the patience of the court.
I originally did not request oral arguments but wonder If that is one way I can get the court to act.
The issue of how the case will be submitted awaits the determination of when it will be submitted. So that probably will not play any role in how the case is "moved". Besides, unless there is a need for oral argument, I would not use that ploy.
We finally got a Justice with some criminial law experiance on the court and the case was reviewed for fundamental error (Has my brief sugested a year and a half ago). And the conviction was Affirmed. Thanks for your help all.
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