Opinion
NUMBER 13-17-00084-CR
02-08-2018
FERNANDO MARTINEZ BALLADARES, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 138th District Court of Hidalgo County, Texas.
ORDER OF ABATEMENT
Before Justices Rodriguez, Longoria, and Hinojosa
Order Per Curiam
This cause is before the Court on appellant's failure to file the appellate brief by January 27, 2018, as ordered by this Court, and appellant's fourth motion for extension of time to file the brief. This Court has previously granted three motions for extension of time totaling 258 days to file appellant's brief in this case. By order issued on December 8, 2017, the Court granted the third motion for extension of time and ordered the Honorable Traci Evans, counsel for appellant, to file the appellate brief with this Court on or before January 27, 2018. The Court informed counsel that no further extensions would be granted absent exigent circumstances and that that if the brief was not timely filed, the Court would act appropriately to ensure that appellant's rights are protected. See TEX. R. APP. P. 38.8 (b)(4). Rather than filing the brief, counsel instead filed a fourth motion for extension of time to file the brief requesting an additional thirty days.
We deny the fourth motion for extension of time. We now abate this appeal and remand the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure. Upon remand, the trial court shall utilize whatever means necessary to make appropriate findings and recommendations concerning the following: (1) whether appellant desires to prosecute this appeal; (2) why appellant's counsel has failed to file a brief and whether counsel has effectively abandoned the appeal; (3) whether appellant has been denied effective assistance of counsel; (4) whether appellant's counsel should be removed; and (5) whether appellant is indigent and entitled to court-appointed counsel.
If the trial court determines that appellant does want to continue the appeal, that present counsel should be removed, and that appellant is indigent and entitled to court-appointed counsel, the trial court shall appoint new counsel to represent appellant in this appeal. If new counsel is appointed, the name, address, email address, telephone number, and state bar number of said counsel shall be included in an order appointing counsel.
The trial court shall cause its findings and recommendations, together with any orders it may enter regarding the aforementioned issues, to be included in a supplemental clerk's record. Furthermore, the trial court shall cause a supplemental reporter's record of any proceedings to be prepared. The supplemental clerk's record and supplemental reporter's record, if any, shall be filed with the Clerk of this Court within thirty days from the date of this order.
It is so ORDERED.
PER CURIAM Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed this the 8th day of February, 2018.