Dennis Salzido v. State ( 2010 )

NO. 07-10-0031-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 19, 2010
______________________________
DENNIS SALZIDO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY;
NO. 1123446D; HONORABLE GEORGE GALLAGHER, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Following a plea of not guilty, Appellant, Dennis Salzido, was convicted by a jury
of driving while intoxicated,1 enhanced. Punishment was assessed at twenty-five years
confinement.
1
Tex. Penal Code Ann. § 49.04 (Vernon 2003).
The appellate record was filed and Appellant's brief was originally due on March
18, 2010. When the brief was not filed, by letter dated March 25, 2010, this Court
notified Appellant's appointed counsel, Richard Kline, of the defect. In response, on
April 5, 2010, Appellant's counsel filed a motion for extension of time acknowledging
that ignorance of "local rules" was a weak explanation for not knowing the brief's due
date.2 Appellant's counsel requested a sixty-day extension; however, this Court granted
only thirty days, setting the new deadline at May 7, 2010. No brief was filed, and on
May 11, 2010, Appellant's counsel filed a second motion for extension of time in which
he cited the normal press of business as good cause and requested an additional thirty
days.3 Notwithstanding the lack of actual good cause, the request was granted, further
extending the deadline to June 11, 2010. No brief was filed, and on June 14, 2010,
Appellant filed a third motion for extension of time in which counsel explained he had
attended a seminar which required a "complete re-work" of Appellant's brief. Counsel
requested an extension until June 25, 2010 and provided that "[a]bsolutely no further
extensions will be requested by Appellant." Again, this Court granted the extension,
extended the deadline until June 25, 2010, and admonished that "[f]ailure to comply . . .
may result in the appeal being abated and the cause remanded to the trial court for
further proceedings." June 25th came and went, still no brief.
On July 6, 2010, Appellant filed a fourth motion for extension of time alleging as
grounds:
2
Briefing deadlines are not set by local rules. Rule 38.6(a) of the Texas Rules of Appellate Procedure
governs the time in which an appellant's brief is due.
3
The normal press of business is not generally considered good cause. See Curry v. Clayton, 715
S.W.2d 77, 79 (Tex.App.--Dallas 1986, no writ).
2
[o]n Friday, June 25, as a diversion while finishing the Brief, Appellant's
attorney decided to download Windows 7 operating system to up grade
his software. For technical reasons, this required a custom download.
Unbeknownst to this attorney, was that this custom download would delete
all of the data on this attorney's computer, including all calendars, device
drivers, documents (including appellant's brief) . . . . This has been
exacerbated by the fact that this attorney's legal/administrative assistant
has been on vacation all of this week.
In the fourth motion, counsel requested until Friday, July 9, 2010, in which to file the
brief. That date has now passed and Appellant's counsel has still failed to file
Appellant's brief. Accordingly, by Order of this Court, Appellant's Fourth Motion for
Extension of Time to File Appellant's Brief is denied.
Given the information available to this Court, we now abate this appeal and
remand the cause to the trial court for further proceedings. Upon remand, the trial court
shall immediately determine why counsel has failed to timely file Appellant=s brief and
take such action as is necessary to ensure that the brief is filed with the Clerk of this
Court on or before August 2, 2010.
Should counsel file Appellant's brief on or before August 2, 2010, he is directed
to notify the trial court, in writing, of the filing, whereupon the trial court shall not be
required to take further action. If, however, the brief is not timely filed, pursuant to Rule
38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure, the trial court is directed
to immediately conduct a hearing to determine the following:
1. whether Appellant desires to prosecute this appeal;
2. whether Appellant's counsel has effectively abandoned this appeal;
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3. whether Appellant is indigent and entitled to the appointment of new
counsel.
Should it be determined that Appellant does want to continue the prosecution of this
appeal and the trial court determines he is entitled to new appointed counsel, the trial
court shall appoint new appellate counsel and the name, address, telephone number,
and state bar number of the newly-appointed counsel shall be provided to the Clerk of
this Court. The trial court shall execute findings of fact and conclusions of law, and shall
cause its findings, conclusions, and any necessary orders to be included in a
supplemental clerk's record to be filed with the Clerk of this Court by September 2,
2010. Finally, newly appointed counsel shall file Appellant's brief within thirty days after
the date of appointment.
It is so ordered.
Per Curiam
Do not publish.
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