Opinion
04-22-00643-CR
10-24-2023
Steve Herrera, Appellant v. The State of Texas, Appellee
From the 379th Judicial District Court, Bexar County, Texas Trial Court No. 2019CR11845 Honorable Ron Rangel, Judge Presiding
ORDER
Irene Rios, Justice
Appellant's brief was originally due on March 6, 2023; however, neither the brief nor a motion for extension of time was filed. On April 21, 2023, the clerk of this court notified appellant's counsel, Judith K. Wemmert, of the deficiency. The letter required a response by May 1, 2023. See TEX. R. APP. P. 38.8(b)(2). We did not receive a response from counsel and the brief was not filed.
On May 11, 2023, we abated this appeal to the trial court to hold a hearing to determine whether appellant desired to prosecute his appeal, whether appellant was indigent, and whether counsel had abandoned this appeal. See Tex. R. App. P. 38.8(b)(2). On August 18, 2023, the trial court held an abandonment hearing. Judith K. Wemmert represented to the trial court that she would file the appellant's brief "by September 18[, 2023]."
On August 18, 2023, a supplemental clerk's record containing the trial court's findings of facts and conclusions of law was filed. The trial court found appellant desires to prosecute his appeal, appellant is indigent, appellate counsel Judith K. Wemmert has not abandoned this appeal, and appellant desires Judith K. Wemmert to continue as his appellate counsel. The trial court also found Judith K. Wemmert is "credible" and "she will not further delay in filing the appellant's brief."
On August 23, 2023, we reinstated this appeal on the docket of this court and ordered Judith K. Wemmert to file the appellant's brief on or before September 22, 2023. TO DATE,
JUDITH K. WEMMERT HAS NOT FILED THE APPELLANT'S BRIEF IN THIS COURT.
Accordingly, in the interest of justice, we ABATE this appeal and REMAND the cause to the trial court for a second abandonment hearing and consideration of whether new counsel should be appointed to represent appellant.
Pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we 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?
(a) 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
(b) If the trial court finds that appellant is not indigent, the trial court should determine whether appellant has made the necessary arrangements for filing a brief.
(3) Has appointed or retained counsel abandoned the appeal? Because initiating contempt proceedings against appellant's counsel may be necessary, the trial court should address this issue even if new counsel is retained or substituted before the date of the hearing. See Tex. R. App. P. 38.8 (b)(4).
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 ORDER the trial court to file its written findings of fact and conclusions of law regarding the abandonment hearing or appointment of new counsel with the trial court clerk on or before November 14, 2023. We ORDER the trial court clerk to file a supplemental clerk's record in this court no later than ten days after the trial court files its findings of facts and conclusions of law. We further ORDER the court reporter to file in this court a supplemental reporter's record of the hearing, along with copies of any documentary evidence admitted, no later than ten days after the date of the hearing.
All other appellate deadlines are ABATED pending further orders from this court.