Opinion
01-22-00289-CR
08-17-2023
Andrew Martinez v. The State of Texas
Trial court: 22nd District Court of Hays County Trial court case number: CR-16-0994-A-WHC1
ORDER
Veronica Rivas-Molloy Judge
After the Court of Criminal Appeals permitted appellant to file an out-of-time appeal, appellant Andrew Martinez timely filed a notice of appeal from his murder conviction. See TEX. PENAL CODE § 19.02. The clerk's record was filed on April 6, 2022. On June 10, 2022, the Court was notified that no record was taken. On July 26, 2022, the Clerk of this Court notified Appellant that his brief was late and, absent a satisfactory response within ten days, the Court might be required to order the trial court to conduct a hearing pursuant to Texas Rule of Appellate Procedure 38.8. See TEX. R. APP. P. 38.8(b)(2), (3). Appellant has not responded.
Texas Rule of Appellate Procedure 38.8(b)(1) provides that in a criminal case, an "appellant's failure to timely file a brief does not authorize either dismissal of the appeal or, except as provided in (4), consideration of the appeal without briefs." Rule 38.8(b)(4) provides that the Court may consider the appeal without briefs, as justice may require, if the trial court finds the appellant (1) no longer desires to prosecute the appeal, or (2) is not indigent but has not made the necessary arrangements for filing a brief. TEX. R. APP. P. 38.8(b)(1), (4).
We abate this appeal and remand the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(4). The trial court shall, within 10 days of this Order, conduct a hearing at which Appellant and a representative of the Hays County District Attorney's Office shall be present. The court coordinator for the trial court shall set a hearing date and notify the parties, including Appellant. We direct the trial court to make appropriate written findings of fact and conclusions of law and sign any necessary orders on:
If he is now incarcerated, Appellant may appear by closed-circuit video teleconference. Any such teleconference must use a closed-circuit video teleconferencing system that provides for a simultaneous compressed full motion video and interactive communication of image and sound between the trial court, Appellant, and any attorneys representing the State or Appellant. On his request, Appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the State's attorney.
1) Whether Appellant wishes to pursue his appeal;
2) If he does, whether Appellant's counsel has abandoned the appeal;
3) If he has, whether Appellant is indigent and entitled to appointed counsel, and, if indigent, appoint Appellate counsel at no expense to Appellant; or
4) If Appellant is not indigent and his counsel has abandoned the appeal:
a. admonish Appellant regarding the dangers and disadvantages of selfrepresentation, and determine whether Appellant has knowingly and intelligently waived his right to counsel and, if so, obtain a written waiver of the right to counsel; or
b. if Appellant does not wish to proceed pro se, provide a deadline by which Appellant must hire an attorney, which shall be no later than 30 days after the date of the hearing.TEX. CODE CRIM. PROC. arts. 1.051(d), 26.04; TEX. R. APP. P. 38.8(b)(2), (3), (4).
The trial court shall have a court reporter, or court recorder, record the hearing. The trial court clerk is directed to file a supplemental clerk's record containing the trial court's findings and recommendations with this Court no later than 25 days from the date of this order. See TEX. R. APP. P. 34.5(c). The court reporter is directed to file the reporter's record of the hearing no later than thirty days from the date of this order. See TEX. R. APP. P. 34.6(d). If the hearing is conducted by video teleconference, an electronic copy of the hearing shall be filed in this Court no later than thirty days from the date of this order.
The appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket when the supplemental clerk's record and reporter's record compliant with our Order are filed with the Clerk of this Court.
It is so ORDERED.