Opinion
No. 04-16-00254-CR
11-16-2016
Adrian Vicente BARBOSA, Appellant v. The State of TEXAS, Appellee
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2015CRD001576 D3
Honorable Rebecca Ramirez Palomo, Judge Presiding
ORDER
Appellant's brief was due October 17, 2016, but was not filed. The clerk of this court notified appellant's counsel, Nathan H. Chu, of the deficiency by letter dated October 27, 2016. See TEX. R. APP. P. 38.8(b)(2). The letter required appellant to respond in writing within ten days, explaining why the brief has not been filed and demonstrating that counsel has taken affirmative steps to prepare and file the brief. The letter further advised counsel that if an adequate response was not timely filed, the court would abate the appeal for an abandonment hearing in the trial court. We have received no response.
Therefore, pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellant Procedure, we ORDER this appeal abated, remand the case to the trial court, and ORDER the trial court to conduct a hearing to determine (1) whether appellant desires to prosecute his appeal, and (2) whether counsel has abandoned the appeal. Id. Because appellant is indigent, the trial court must take steps to ensure effective assistance of counsel, including the appointment of new counsel if necessary.
The trial court may, in its discretion, receive evidence on the first issue by sworn affidavit from the appellant. The trial court shall, however, order appellant's counsel to be present at the hearing.
We further ORDER the trial court to make written findings and conclusions on these issues within thirty days of the date of this order. We ORDER the court reporter and the district clerk to file in this court, on or before January 2, 2017 (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 id. R. 38.8(b)(3).
We order the clerk of this court to serve a copy of this order on the trial court, the district clerk, the court reporter, and all counsel.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 16th day of November, 2016.
/s/_________
Keith E. Hottle
Clerk of Court