Opinion
05-23-00118-CR
02-14-2024
JAMES ANTHONY GUTIERREZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-81270-2021
ORDER
ERIN A. NOWELL, JUSTICE
Appellant's brief is overdue; the brief was originally due June 15, 2023. We abated this appeal for the trial court to hold a hearing and make findings and recommendations concerning appellant's counsel, Kristin Brown's, failure to file the brief. The trial court held the hearing on December 4, 2023. The trial court found Ms. Brown "was not able to adequately devote necessary time to perfect a proper appeal" due to her other professional responsibilities and because of a family medical emergency. The trial court also found the appeal had not been abandoned and appellant does not require new counsel. Ms. Brown requested the trial court recommend an extension of forty-five days to file the brief, given the holiday timeframe. The trial court recommended Ms. Brown be granted sixty days to file appellant's brief. We granted the extraordinary extension of sixty days based on the trial court's recommendation. The sixty days has passed, yet Ms. Brown has not filed appellant's brief. The brief is now eight months overdue for this out-of-time appeal from a conviction in 2022.
Accordingly, the Court ORDERS the trial court to conduct another hearing within TWENTY DAYS of the date of this order to determine why appellant's brief has not been filed and when the brief will be filed. In this regard, the trial court shall make appropriate findings and recommendations and determine when Ms. Brown will file the brief. Appellant is indigent, and Ms. Brown is appointed counsel, so the trial court is ORDERED to take such measures as may be necessary to assure effective representation, which may include appointment of new counsel.
In making the findings of when Ms. Brown will file the brief and whether new counsel should be appointed, the trial court shall consider, and Ms. Brown shall disclose to the trial court, the extent of Ms. Brown's current trial and appellate docket, including the number of cases on which she is appellate counsel where briefs are coming due, are due, or are overdue, and the number of appeals currently abated where this Court and other courts have ordered trial courts to conduct hearings because briefs are currently overdue. The trial court shall also consider any personal obligations, including personal and family health issues, that may delay Ms. Brown's completion of the brief. This Court does not question that Ms. Brown, as she states in her motions for extension of time to file briefs, "has been working as diligently as possible to complete her trial and appellate obligations in a timely manner," but the Court is concerned that Ms. Brown's other professional and personal obligations have resulted in ineffective assistance of appellate counsel toward appellant. If the trial court concludes that Ms. Brown is unlikely to file the brief in forty-five days, the trial court shall order Ms. Brown removed from representing appellant and shall appoint counsel who is likely to file the brief within thirty days.
We ORDER the trial court to transmit a record of the proceedings, which shall include written findings, recommendations, and any necessary orders, to this Court within THIRTY DAYS of the date of this order.
The court reporter for the hearing shall file a reporter's record of the hearing required by this order within THIRTY DAYS of the date of this order.
We DIRECT the Clerk to send copies of this order to the Honorable Tom Nowak, Presiding Judge, 366th Judicial District Court; Michael Gould, Collin County District Clerk; Antoinette Varela, Official Court Reporter, 366th Judicial District Court; and counsel for all parties.
We ABATE this appeal for the trial court to comply with this order. The appeal shall be reinstated when the Court receives the trial court's findings or at such other time as the Court deems appropriate.