# 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 Elen a D. Chapa, Justice

I rene Rios, Justice

Beth Watkins , Justice

Appellant’s brief was o riginally due on March 26, 2020. Counsel for appella nt 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 b riefing 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 anot her 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 p ast due.

On September 19, 2020, counsel for appell ant 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 change s to various civil and criminal procedures; (2) changes in staff and tocounsel’s practice; and (3) an inability to meet with appellant’s family members or review documents they have provided to assist wi th this appeal.

Our order granting counsel’s secon d 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 advis e 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

month s. 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 wa s 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 T EX

. R. A PP

. 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

s erve 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