Opinion
Appellate case number: 01-19-00168-CR
11-21-2019
Eduardo Balanzar Vargas v. The State of Texas
ORDER Trial court case number: 81706-CR Trial court: 239th District Court of Brazoria County
The complete record was filed in this appeal on June 24, 2019. Appellant's brief, therefore, was due on July 24, 2019. See TEX. R. APP. P. 38.6(a). On August 20, 2019, the Clerk of this Court notified appellant that the time for filing his brief had expired and, unless the Court received appellant's brief along with a motion for extension of time to file appellant's brief within ten days, the Court would 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); see also TEX. R. APP. P. 10.5(b). Appellant has not filed a brief or otherwise responded to this Court's notice.
Accordingly, we abate the appeal and remand for the trial court to immediately conduct a hearing at which a representative of the Brazoria County District Attorney's Office and appellant's appointed counsel, Mark Bennett, shall be present. TEX. R. APP. P. 38.8(b)(2). Appellant shall also be present for the hearing in person or, if he is incarcerated, at the trial court's discretion, he may participate in the hearing by closed-circuit video teleconferencing.
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.
The trial court is directed to:
(1) determine whether appellant wishes to prosecute the appeal;
(2) if appellant wishes to prosecute the appeal, determine whether good cause exists to relieve Mark Bennett of his duties as appellant's counsel;
(3) if good cause exists, enter a written order relieving Mark Bennett of his duties as appellant's counsel, including in the order the basis for and finding of good cause, and appoint substitute appellate counsel at no expense to appellant;
(4) if good cause does not exist, set a date when appellant's brief is due, regardless of
whether this Court has yet reinstated the appeal and no later than 30 days from the date of the hearing;See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), 26.04(j)(2); TEX. R. APP. P. 38.8(b).
(5) make any other findings and recommendations the trial court deems appropriate; and
(6) enter written findings of fact, conclusions of law, and recommendations as to these issues.
The trial court shall have a court reporter record the hearing and file the reporter's record with this Court within 30 days of the date of this order. The trial court clerk is directed to file a supplemental clerk's record containing the trial court's findings and recommendations and any orders with this Court within 30 days of the date of this order.
The appeal is abated, treated as a closed case, and removed from this Court's active docket. The court coordinator of the trial court shall set a hearing date and notify the parties and the Clerk of this Court of such date.
It is so ORDERED. Judge's signature: /s/ Julie Countiss
[v] Acting individually [ ] Acting for the Court Date: November 21, 2019