Opinion
04-21-00570-CR
09-15-2022
Rueben Justin TREJO, Appellant v. The STATE of Texas, Appellee
From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2019-CR-9333 Honorable Michael E. Mery, Judge Presiding
Sitting: Beth Watkins, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
ORDER
Beth Watkins, Justice
Appellant's brief was originally due on May 18, 2022 and was not filed. We granted appellant's first motion for extension of time, extending the deadline for filing the brief to July 18, 2022. On July 15, 2022, appellant's appointed counsel filed a motion requesting an additional extension of time to file the brief until August 15, 2022, for a total extension of eighty-nine days, and we granted the motion. In our order granting the second motion for extension of time, we cautioned appointed counsel that requests for further extensions of time would be disfavored.
On August 15, 2022, appellant's appointed counsel filed a third motion for extension of time requesting an additional thirty days to file the brief, for a total extension of 119 days. The motion stated, in part, that appellant's counsel “does not [have] the Court Reporter's record from the voir dire proceedings.” On August 16, 2022, we granted that motion and ordered appointed counsel to file the brief by September 14, 2022. In our August 16, 2022 order, we advised counsel that no further extensions of time would be granted, and we stated that if the brief was not filed by September 14, 2022, we would abate the appeal and remand the cause 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). We further noted that: (1) the reporter's record was filed on April 18, 2022; (2) appellant's previous motions for extension of time did not contend that any volumes of the reporter's record were missing; and (3) appellant had not asked us to order the court reporter to file any missing volumes.
On September 13, 2022, appointed counsel filed a fourth motion for extension of time. The motion again stated that appellant's counsel did not have access to the record from the voir dire proceedings. It also explained that appellant's counsel had conferred with the court reporter on July 19, 2022 and September 13, 2022 about the preparation of the record, and represented that the court reporter had told appellant's counsel on September 13, 2022 that the record would be available within two weeks. The motion requested an additional thirty days to file the brief, for a total extension of 149 days.
Pursuant to our August 16, 2022 order and 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 trial court to prepare written findings of fact and conclusions of law on the above questions. We ORDER the district clerk and court reporter to file a supplemental clerk's and reporter's records in this court by October 17, 2022, which shall include: (1) a transcription of the hearing and copies of any documentary evidence admitted; (2) the trial court's written findings of fact and conclusions of law; and (3) recommendations addressing the above enumerated questions. Appellant's September 13, 2022 motion for extension of time is HELD IN ABEYANCE pending further order of this court.