Ex Parte Sobers — Appeal abated and remanded for an inquiry into appellant’s intent and counsel’s possible abandonment

Unreported / Non-Citable

Background

Dwayne Orlando Sobers appealed from a proceeding in the 27th District Court of Bell County. His appellate brief was not filed by the applicable deadline.

On September 11, 2026, the Third Court of Appeals notified Sobers that his brief was overdue. The court warned that failure to provide a satisfactory response by September 21 would result in referral to the trial court for a hearing under Texas Rule of Appellate Procedure 38.8(b).

The Court’s Holding

The court abated the appeal and remanded the case to the trial court for a hearing to determine whether Sobers wishes to prosecute the appeal and, if so, whether his counsel has abandoned it. The trial court must make appropriate written findings and recommendations and, if necessary, appoint substitute counsel who will effectively represent Sobers on appeal.

The hearing must be transcribed, and the trial court must direct preparation of supplemental clerk’s and reporter’s records containing all findings and orders. Those materials must be forwarded to the court of appeals no later than November 30, 2026. The order did not resolve the merits of Sobers’s appeal.

Key Takeaways

• An overdue brief prompted the appellate court to invoke the procedures in Texas Rule of Appellate Procedure 38.8(b).
• The trial court must determine whether Sobers intends to continue the appeal and whether appellate counsel has abandoned it.
• The appeal remains unresolved while the trial court conducts the hearing and returns its findings and supplemental records.

Why It Matters

The order illustrates the procedural safeguards Texas appellate courts use when a criminal appellant’s brief is not filed. Before allowing an appeal to falter because of counsel’s inaction, the court required a record-based inquiry into the appellant’s wishes and the adequacy of representation.

The decision is procedural rather than a ruling on the underlying case. Its immediate effect is to pause the appellate proceedings while the trial court investigates and, if needed, appoints substitute counsel.