Opinion
04-23-00112-CR
02-16-2024
Jeremy ALDERSON, Appellant v. The STATE of Texas, Appellee
From the 38th Judicial District Court, Uvalde County, Texas Trial Court No. 2017-05-13022-CR Honorable Steve Hilbig, Judge Presiding
ORDER
Liza A. Rodriguez, Justice
On June 21, 2023, the trial court appointed Mr. Kyle Ernst to represent appellant in this appeal. We ordered appellant's brief due on or before July 24, 2023. After we granted multiple extensions of time, appellant's counsel, Mr. Ernst, advised us that the reporter's record was incomplete. On October 31, 2023, the omitted part of the reporter's record was filed. We ordered appellant's brief due on or before December 1, 2023. However, Mr. Ernst failed to file either the appellant's brief or a motion for an extension of time.
On December 13, 2023, Mr. Ernst informed the clerk of this court that he planned to file a motion to dismiss this appeal on appellant's behalf. However, a motion to dismiss was not filed.
On January 5, 2024, the clerk of this court sent a late brief notice to Mr. Ernst, directing him to respond in writing to this court within ten days of the late. Mr. Ernst did not file a written response providing a reasonable explanation for his failure to timely file appellant's brief.
On January 22, 2024, we ordered Mr. Ernst to file appellant's brief or an appropriate motion in this court on or before February 6, 2024. To date, Mr. Ernst has failed to file the appellant's brief or an appropriate motion in this court.
Therefore, pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), we abate this case to the trial court 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?
(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 counsel, Mr. Ernst, abandoned the appeal? The trial court should address this issue even if new counsel is 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 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 with the trial court clerk no later than March 14, 2024.
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 thirty days after the date of the hearing.
All appellate deadlines are ABATED pending further orders from this court.