Fourth Court of Appeals San Antonio, TexasDec 19, 2016
No. 04-15-00596-CR (Tex. App. Dec. 19, 2016)

No. 04-15-00596-CR


Isidro Espinosa SOLIS, Appellant v. The STATE of Texas, Appellee

From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR2691
Honorable Mary D. Roman, Judge Presiding


Sitting:Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice

This appeal was filed in September 2015. In July 2016, appellant's retained attorney was disbarred. At that time, the record was complete and appellant's brief was past due. On August 9, 2016, the trial court appointed Pat Montgomery to represent appellant in the appeal. On August 23, we ordered appellant's brief due September 22, 2016. When neither the brief nor a motion for extension of time to file the brief was filed by the due date, the Clerk of this court sent Montgomery a letter pursuant to Texas Rule of Appellate Procedure 38.8(b)(2). The letter required a written response from Montgomery by October 7, 2016, and advised that if an adequate response were not timely filed, the appeal would be abated for an abandonment hearing.

Montgomery did not respond to the Clerk's letter. Accordingly, on October 13, we abated the appeal and ordered the trial court to conduct a hearing and determine whether Solis desired to continue prosecuting the appeal and whether counsel had abandoned the appeal. At the hearing held October 28, Montgomery told the trial court the brief would be filed by November 14. The trial court found Montgomery had not abandoned the appeal and that Montgomery would file appellant's brief by November 14, 2016. We reinstated the appeal and ordered the brief due November 15.

Again, Montgomery did not file either a brief or a motion for extension of time by the date ordered. On November 29, 2016, after a telephone call from the office of the Clerk, Montgomery filed a motion for extension of time, requesting an additional ten days from the date of the motion to file the brief. We granted the motion in an order dated December 2, 2016. Our order stated in part:

We order Pat Montgomery to file appellant's brief by December 9, 2016. If counsel fails to file the brief by the date ordered, we may order him to appear before this court to show cause why he should not be held in contempt for failing to comply with the court's order.

Montgomery has not filed appellant's brief or any other response to our December 2, 2016 order.

We therefore ORDER Pat Montgomery to appear in the courtroom at the Fourth Court of Appeals, 300 Dolorosa, Suite 3200, San Antonio, Texas, on January 25, 2017, at 2:00 p.m., before a panel consisting of Chief Justice Marion, Justice Chapa, and Justice-Elect Rios to show cause why he should not be held in criminal contempt and civil contempt of this court or otherwise sanctioned for violating this court's December 2, 2016 order by failing to file appellant's brief by December 9, 2016. Mr. Montgomery is advised that he has a right to be represented by counsel at the show cause hearing and the proceedings will be recorded by a certified court reporter.

We further ORDER the Clerk of this court to effect personal service of this order on Pat Montgomery with proof of service.

This order does not dispense with Montgomery's continuing obligation to prepare and file a brief on appellant's behalf.


Luz Elena D. Chapa, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 19th day of December, 2016.


Keith E. Hottle

Clerk of Court