Jonathan David Tarbet v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00703-CR

Jonathan David Tarbet, Appellant v. The State of Texas, Appellee

FROM THE 424TH DISTRICT COURT OF LLANO COUNTY NO. CR8554, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM Appellant Jonathan David Tarbet, through counsel Lyn Jenkins, has filed a notice of appeal in this Court, seeking review of a sentence imposed in the above cause number.

Lyn Jenkins also relayed appellant’s request for court-appointed counsel “as he is indigent.” The clerk’s and reporter’s records in this appeal were due for filing in this Court on December 23, 2024. On December 30, 2024, we notified appellant that no reporter’s record had been filed due to his failure to request the reporter’s record. The notice requested that appellant provide this Court with written verification—that a request to the court reporter for the record had been made—by January 9, 2025. On January 8, 2025, we notified appellant that no clerk’s record had been filed due to his failure to pay or make arrangements to pay the trial clerk’s fee for preparing the clerk’s record. The notice requested that appellant make arrangements for the clerk’s record and submit a status report regarding this appeal by January 17, 2025.

To date, appellant has not filed a status report or otherwise responded to this Court’s notices and the clerk’s and reporter’s records have not been filed. If a trial-court clerk fails to file the clerk’s record due to an appellant’s failure to pay or make arrangements to pay for the clerk’s fee for preparing the record, the appellate court may dismiss the appeal for want of prosecution unless the appellant was entitled to proceed without payment of costs. Tex. R. App. P. 37.3(b). The appeal is abated and remanded to the trial court for a hearing to determine whether appellant is presently indigent and entitled to proceed without payment of costs. See Tex. R. App. P. 37.3(a)(2) (“If the clerk’s record or reporter’s record has not been timely filed, the appellate court clerk must refer the matter to the appellate court. The court must make whatever order is appropriate to avoid further delay and to preserve the parties’ rights.”).

If the trial court finds that appellant cannot pay or give security for the appellate record, it shall order the preparation of the clerk’s and reporter’s records at no cost to appellant.

In addition, the trial court shall consider appellant’s pending request, if any, for the appointment of appellate counsel. See Tex. Code Crim. Proc. art. 1.051(b), (d)(1). Following the hearing, which shall be transcribed, the trial court shall order the appropriate supplemental clerk’s and reporter’s records to be prepared and forwarded to this Court no later than March 14, 2025.

It is ordered on February 12, 2025.

Before Chief Justice Byrne, Justices Kelly and Ellis Abated and Remanded Filed: February 12, 2025 Do Not Publish