Opinion
No. 07-17-00237-CR No. 07-17-00238-CR No. 07-17-00239-CR
01-31-2018
JOSHUA HARLAN-ROY BARKER, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court Randall County, Texas
Trial Court No. 22,601-B (Counts I, II, & III), Honorable John B. Board, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Appellant Joshua Harlan-Roy Barker appeals from the trial court's judgments revoking his community supervision, adjudicating him guilty of three counts of aggravated sexual assault of a child, and sentencing him to three concurrent life sentences. We abate these appeals and remand the causes to the trial court for further proceedings.
First, the certification of appellant's right of appeal executed by the trial court states that these cases are plea-bargain cases and "defendant has NO right of appeal" and that "defendant has waived the right of appeal." No certification showing appellant is entitled to an appeal has been filed with this court. See TEX. R. APP. P. 25.2(d). Normally, the absence of such a certification requires dismissal of the appeal. Cortez v. State, 420 S.W.3d 803, 805-806 (Tex. Crim. App. 2013). Yet, the record indicates that that appellant's convictions did not arise from plea bargains. This circumstance causes us pause. Rather than dismiss, we will remand the proceedings to the trial court to address the matter and issue a corrected certification if it determines that the original one is inaccurate, and appellant does have a right to appeal. See Cortez v. State, supra (discussing options available to the appellate court when a certification illustrating the appellant's right to appeal is missing from the record).
Next, appellant's brief was originally due on November 27, 2017, but we granted him two extensions to file it. By our last order dated December 27, 2017, we admonished appellant's counsel that the failure to file a brief by January 17, 2018, would result in the appeals being abated and the causes remanded to the trial court for further proceedings without further notice. See TEX. R. APP. P. 38.8(b)(2), (3). Counsel for appellant moved for a third extension on the evening of January 29, 2018, almost two weeks after the January 17th deadline. Therein, he effectively asked for an additional month to complete the brief, contrary to our former order stating that no further extensions would be granted. The reason given for the delay was "[d]ue to the profusion of parole revocation hearings and other appeals for which undersigned counsel has been appointed, he has not yet had time to complete the brief." This was the same reason given to justify his first and second requests for extensions, which we granted. In none of his motions, has he provided any factual details to support his requests. Simply put, he has left us to guess at the number of parole revocation hearings and appeals in which he is involved and pertinent dates in each which affect his ability to file the brief in the causes at bar. Thus, we have been denied the opportunity to substantively analyze the situation and gauge when the brief would likely be filed or whether his schedule detrimentally impacts appellant's right to receive the effective assistance of counsel.
Accordingly, we deny the third motion to extend the briefing deadline, abate these appeals, and remand the causes to the 181st District Court of Randall County (trial court) for further proceedings. Upon remand, the trial court shall determine the following:
1. whether appellant has the right of appeal; if so,
2. whether appellant desires to prosecute the appeals;
3. whether appellant is indigent;
4. why a timely appellate brief has not been filed on behalf of appellant;
5. whether appellant has been denied the effective assistance of counsel due to counsel's failure to timely file an appellate brief, see Ex parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005) (holding "a reasonably competent attorney—regardless of whether he is retained or appointed—must seek to advance his client's best defense in a reasonably competent manner");
6. whether new counsel should be appointed; and
7. if appellant has a right to appeal and desires to continue these appeals, the final date on which appellant will file appellant's brief.
The trial court is also directed to enter such orders necessary to address the aforementioned questions. So too shall it include its findings on those matters in a supplemental record and cause that record to be filed with this court by March 1, 2018. If it is determined that appellant has the right of appeal, the trial court shall prepare an amended certification stating same and include the amended certification with the supplemental record. See TEX. R. APP. P. 25.2(f). If it is further determined that appellant desires to proceed with the appeals, is indigent, and has been denied the effective assistance of counsel, the trial court may appoint him new counsel. If new counsel is appointed, then the name, address, email address, and phone number of that person shall be included in the aforementioned findings. Should further time be needed to perform these tasks, then same must be requested before March 1, 2018.
It is so ordered.
Per Curiam Do not publish.