Opinion
05-24-00160-CR
11-01-2024
JUAN ELIAS AVILA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F22-50844.
ORDER
AMANDA L. REICHEK, JUSTICE.
Appellant's brief is overdue. Appellant's brief was originally due May 28, 2024. On June 4, 2024, this Court granted the motion for extension of time to file the brief filed by appellant's counsel, Valencia Bush, and we ordered Ms. Bush to file appellant's brief on or before July 5, 2024. On August 27, 2024, Ms. Bush filed a second motion for extension of time to file the brief, which this Court granted, ordering Ms. Bush to file appellant's brief on or before September 27, 2024. On October 9, 2024, this Court ordered Ms. Bush to file appellant's brief and a motion for extension of time to file the brief by October 24, 2024, and we cautioned Ms. Bush that if appellant's brief and a motion for extension were not filed by that date, the case might be abated for the trial court to make findings in accordance with Rule of Appellate Procedure 38.8. As of the date of this order, Ms. Bush has not filed appellant's brief.
The Court ORDERS the trial court to conduct a hearing to determine why appellant's brief has not been filed. In this regard, the trial court shall make appropriate findings and recommendations and determine whether appellant desires to prosecute the appeal, whether appellant is indigent, or if not indigent, whether retained counsel has abandoned the appeal. See TEX. R. APP. P. 38.8(b). If the trial court cannot obtain appellant's presence at the hearing, the trial court shall conduct the hearing in appellant's absence. See Meza v. State, 742 S.W.2d 708 (Tex. App.-Corpus Christi 1987, no pet.) (per curiam). If appellant is indigent, the trial court is ORDERED to take such measures as may be necessary to assure effective representation, which may include appointment of new counsel.
The trial court's findings shall also include whether counsel has begun work on the brief. If the trial court finds that counsel has not begun work on the brief, then the trial court shall find the date counsel expects to begin work on the brief. The trial court shall also find the date counsel expects to file the brief.
If the trial court finds that appointed counsel does not expect to file the brief within forty-five days of the hearing, the trial court shall make a finding whether other counsel could be appointed and expect to file the brief within forty-five days of the hearing. If the trial court finds that another attorney could be appointed to represent appellant and could file the brief within forty-five days or less of the hearing, the trial court shall make a finding of the name of that attorney, shall remove Ms. Bush from representing appellant, and shall appoint the lawyer who can file the brief within forty-five days.
We ORDER the trial court to transmit a record of the proceedings, which shall include written findings and recommendations, to this Court within THIRTY DAYS of the date of this order.
We ORDER the court reporter for the hearing to file the reporter's record for the hearing within THIRTY DAYS of the date of this order.
We DIRECT the Clerk to send copies of this order to the Honorable Chika Anyiam, Presiding Judge, Criminal District Court No. 7, Dallas County; Felicia Pitre, Dallas County District Clerk; Stacy Harlow, Official Court Reporter, Criminal District Court No. 7; Christina O'Neil, Chief Judicial Staff Counsel for the Criminal District Courts, Dallas County; and counsel for all parties.
We ABATE this appeal for the trial court to comply with this order. The appeal shall be reinstated when the Court receives the trial court's findings or at such other time as the Court deems appropriate.