IN RE: Joseph E. Garcia

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Court of Appeals of Texas, Austin.

IN RE: Joseph E. Garcia, III Dylan Scott Garrett, Appellant v. The State of Texas, Appellee

NO. 03-17-00082-CR

Decided: May 24, 2018

Before Justices Puryear, Pemberton, and Bourland

ORDER

This is a contempt proceeding ancillary to the appeal of Dylan Scott Garrett. The subject of this proceeding is Joseph E. Garcia, III, appellant's attorney.

Appellant filed his notice of appeal on January 27, 2017, and his brief was due May 10, 2017—12 months ago. After two abatements to the trial court for hearings pursuant to Texas Rule of Appellate Procedure 38.8, on March 30, 2018, we ordered counsel to file appellant's brief no later than April 20, 2018. After Garcia failed to file the brief by April 20, we ordered him to appear in person to show cause why he should not be held in contempt and have sanctions imposed for his failure to obey our March 30, 2018 order, although we would have withdrawn the show-cause order if Garcia filed the brief on or before May 7.

The show-cause hearing was held in the court on May 9, 2018, and Garcia appeared as ordered. After consideration of the record and Garcia's explanation for failing to comply with our previous order, on May 11, 2018, we again ordered Garcia to appear in person before this Court on Wednesday, May 23, 2018, at 1:30 p.m., in the Third Court of Appeals courtroom, to show cause why he should not be held in contempt and have sanctions imposed for his failure to obey our March 30, 2018 order. This second show-cause order provided that Garcia would be relieved of his obligation to appear before this Court as ordered above if the Clerk of this Court received either a motion to dismiss that is compliant with Texas Rule of Appellate Procedure 42.2 or an appellant's brief that is compliant with Texas Rule of Appellate Procedure 38.1 no later than 8:00 a.m. on May 23, 2018.

The show-cause hearing was held in this Court on May 23, 2018. Garcia failed to appear as ordered. At the time of the hearing, neither a rules-compliant motion to dismiss nor a rules-compliant appellant's brief had been filed. On May 24, 2018, Garcia filed a motion to dismiss signed by appellant and Garcia. See Tex. R. App. P. 42.2(a).

After consideration of the record and Garcia's explanation at the first show-cause hearing for his failure to comply with our previous orders, we specifically find that Joseph E. Garcia, III, is in contempt for violating this Court's order of March 30, 2018, which was sufficiently clear and specific in its requirement that appellant's brief was to be filed by April 20, 2018. See Tex. Gov't Code § 21.002.

Joseph E. Garcia, III, is hereby fined $500, payable to the Clerk of the Court of Appeals, Third District of Texas, on or before June 25, 2018, by 5:00 p.m. See id. § 21.002(b). If Garcia fails to pay the $500 fine by June 25, 2018, he shall be confined in a county jail for a sufficient time to discharge the full amount of the fine at the daily rate allowed for prisoners serving misdemeanor sentences. See In re Miles, 55 S.W.3d 203, 204 (Tex. App.—Houston [1st Dist.] 2001, order) (per curiam); see also Tex. Gov't Code § 21.002(b). It is ordered that all writs and other process necessary for the enforcement of this judgment be issued.

We note that this is not the first time that this Court has held Garcia in contempt. See In re Garcia, No. 03-12-00320-CR, 2013 WL 865106, at *1 (Tex. App.—Austin Feb. 28, 2013, order) (per curiam). We advise the trial court to take these two contempt orders into consideration before appointing Garcia as counsel in any future appeals.

It is ordered on May 24, 2018.

PER CURIAM

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