Fourth Court of Appeals

San Antonio, Texas

October 6, 2020

No. 04-20-00037-CR

Kevin Jon WARNKEN,

Appellant

v.

The STATE of Texas,

Appellee

From the 81st Judicial District Court, Atascosa County, Texas

Trial Court No. 19-02-0029-CRA

Honorable Russell Wilson, Judge Presiding

ORDER

Sitting: Luz Elena D. Chapa, Justice

 Irene Rios, Justice

 Beth Watkins, Justice

Appellant’s brief was originally due on March 26, 2020. Counsel for appellant filed a 

first motion for an extension requesting an additional 90 days. The motion was granted in part, 

and appellant was given an additional 30 days to file the appellant’s brief. Counsel then filed a

second motion for an extension, again requesting an additional 90 days to file the appellant’s 

brief. This court granted the motion in part, and appellant was given an additional 60 days, until 

June 26, 2020, to file the appellant’s brief. On May 22, 2020, this court issued an en banc order 

extending all briefing deadlines to June 30, 2020. 

Neither the appellant’s brief nor a motion for an extension was filed by June 30, 2020. 

This court’s records show the clerk’s office received a call on July 22, 2020, stating counsel for 

appellant would be filing another motion for an extension. No motion was filed. This court then 

issued an order setting the brief due August 21, 2020, and then sent a separate notice, notifying 

counsel that the appellant’s brief was past due.

On September 19, 2020, counsel for appellant filed a third motion for extension of time. 

The motion, again, requests an additional 90 days, from the August due date to file the 

appellant’s brief. The grounds for the motion are that counsel needs additional time due to: (1) 

COVID-19-related changes to various civil and criminal procedures; (2) changes in staff and to 
counsel’s practice; and (3) an inability to meet with appellant’s family members or review 

documents they have provided to assist with this appeal.

Our order granting counsel’s second motion advised “that no further extensions of time 

will be granted absent a timely motion that (1) demonstrates extraordinary circumstances 

justifying further delay, (2) advises the court of the efforts counsel has expended in preparing the 

brief, and (3) provides the court reasonable assurance that the brief will be completed and filed 

by the requested extended deadline. The court does not generally consider a heavy work 

schedule to be an extraordinary circumstance.” Counsel’s third motion does not advise the court 

of what efforts counsel has expended months to review the record, research the law, or prepare 

the appellant’s brief, and suggests counsel has not expended any such efforts in the past 7 

months. Counsel’s motion also does not reasonably assure this court that the appellant’s brief 

will be completed and filed by the requested deadline. Counsel has also failed to timely respond 

to this court’s prior order and notice about appellant’s brief being past due. We also note that the 

appellate record was filed in February, and any other documents in the possession of appellant or 

appellant’s family members that are not included in the record on appeal are not part of the 

appellate record and may not be considered by this court. See TEX. R. APP. P. 34.1.

Counsel’s third motion for an extension is therefore DENIED. On our own motion, we 

ORDER counsel for appellant, Leigh R. Cutter, to file the appellant’s brief within 30 days of 

this order. No extensions will be granted. If counsel for appellant fails to timely file the 

appellant’s brief, counsel will be ordered to appear before this court to show cause why she 

should not be held in civil or criminal contempt. We further ORDER the clerk of this court to 

serve this order on Leigh R. Cutter by certified mail, return receipt requested, and by first class 

United States mail.

_________________________________

Luz Elena D. Chapa, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said 

court on this 6th day of October, 2020.

___________________________________

MICHAEL A. CRUZ, Clerk of Court