Opinion
04-22-00198-CR
08-29-2022
Juan Manuel GOMEZ, Appellant v. The STATE of Texas, Appellee
From the 156th Judicial District Court, McMullen County, Texas Trial Court No. M-21-0013-CR-B Honorable Janna K. Whatley, Judge Presiding
ORDER
Beth Watkins, Justice
Appellant's brief was originally due June 10, 2022. We granted appellant's motion for extension of time, extending the deadline for filing the brief until August 9, 2022. Neither the brief nor a second motion for extension of time was filed on August 9, 2022. In response to inquiries from this court, appellant's appointed counsel represented on August 10, 2022 and August 12, 2022 that he would file a motion for extension of time on August 15, 2022. When neither the brief nor a motion for extension of time were filed on that date, we ordered appellant's counsel to file the brief by August 25, 2022. We cautioned counsel that if the brief was not filed by that date, we would order this appeal abated and remanded to the trial court for a hearing to determine whether appellant or appointed counsel has abandoned the appeal. See Tex. R. App. P. 38.8(b)(2).
Neither the brief nor a motion for extension of time to file the brief has been filed. Accordingly, pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we ORDER this appeal ABATED and ORDER the trial court to conduct a hearing to answer the following questions:
(1) Does appellant desire to prosecute his appeal?
(2) Is appellant indigent? If appellant is indigent, the trial court shall take such measures as may be necessary to assure the effective assistance of counsel, which may include the appointment of new counsel.
(3) Has appointed or retained counsel abandoned the appeal? Because sanctions may be necessary, the trial court should address this issue even if new counsel is retained or substituted before the date of the hearing.
The trial court may, in its discretion, receive evidence on the first two questions by sworn affidavit from appellant. The trial court shall, however, order appellant's counsel to be present at the hearing.
We further ORDER the district clerk and court reporter to file a supplemental clerk's and reporter's records in this court by September 28, 2022, which shall include: (1) a transcription of the hearing and copies of any documentary evidence admitted; (2) written findings of fact and conclusions of law; and (3) recommendations addressing the above enumerated questions.