Opinion
04-21-00216-CR 04-21-00217-CR
09-21-2021
John David BABYAK, Appellant v. The STATE of Texas, Appellee
From the 437th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR9102 & 2018CR9104 Honorable Melisa C. Skinner, Judge Presiding
ORDER
LUZ ELENA D. CHAPA, JUSTICE.
John David Babyak filed a pro se notice of appeal in each of the underlying cases on May 20, 2021, and the trial court appointed Edward F. Shaughnessy to represent Babyak on appeal. The record was filed and this court consolidated the appeals. This court granted counsel's motion for an extension until August 29, 2021, to file the brief. Neither the brief nor a further motion for extension of time was filed by the extended deadline. Therefore, on September 3, 2021, the court ordered appellate counsel to file the brief by September 13, 2021.
Counsel has not filed appellant's consolidated brief. Nor has counsel responded to messages left by and emails sent by the clerk's office inquiring about the status of the brief.
We therefore abate this appeal, remand the case to the trial court, and order the trial court to conduct a hearing within twenty days of the date of this order to determine:
(1) whether appellant desires to prosecute this appeal,
(2) the reasons counsel has failed to file a brief and has failed to respond to communications from the clerk's office, and
(3) whether appellant and counsel have established an attorney-client relationship and whether appellant desires for counsel to continue representing him.
The trial court is directed to ensure effective assistance of counsel and the orderly administration of justice. If the court finds that appellant and counsel have not established an attorney-client relationship or that appellant does not desire counsel to continue representing him, or if the court finds that, notwithstanding a desire to continue an established attorney-client relationship, removal of counsel is necessary to protect the integrity of the judicial process or the fair and orderly administration of justice, the court may remove appointed counsel and appoint new appellate counsel.
The trial court may, in its discretion, receive evidence on these issues by sworn affidavit from the appellant. The trial court shall, however, order appellant's counsel to appear at the hearing.
We further order the trial court to make written findings of fact and conclusions of law on these issues. We order the clerk and court reporter to file in this court, no later than October 21, 2021, (1) a reporter's record of the hearing, and (2) a supplemental clerk's record containing the court's written findings of fact, conclusions of law, and recommendations addressing the above issues. See Tex. R. App. P. 38.8(b)(3).
Appellant's brief remains due and should be filed as soon as possible. Counsel is advised that, notwithstanding any action taken by the trial court pursuant to this order, counsel may be ordered to appear before this court to show cause why he should not be held in contempt or otherwise sanctioned for failing to comply with this court's September 3, 2021 order.