Opinion
No. 05-18-00391-CR
05-07-2019
FRANK PAUL CELAYA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court Dallas County, Texas
Trial Court Cause No. F12-52876-U
ORDER
We REINSTATE the appeal.
Appellant's brief was due on August 24, 2018. Instead of a brief, appellate counsel Tara Cunningham filed a September 7, 2018 letter with the Court representing she had been unable to contact appellant, but he had been granted the shock probation he had requested and his trial counsel had informed her that it was likely appellant no longer wished to pursue the appeal.
On September 12, 2018 the Court abated the appeal for a hearing to determine whether appellant had abandoned his appeal. When no action was taken, the Court followed its order with a November 21, 2018 letter and a second abatement order on January 9, 2019.
On March 19, 2019, a supplemental reporter's record was filed showing the trial court held a hearing on January 17, 2019 pursuant to the Court's orders. Appellant was not present for the hearing. During the hearing, appellate counsel Tara Cunningham affirmed the trial court's understanding that appellant had requested and received community supervision. Cunningham represented that she had not had any contact with appellant. Cunningham represented she had sent appellant two letters and placed telephone calls to three different numbers associated with him. Cunningham telephoned appellant's mother and told her that the trial court's hearing represented "the last opportunity to contact [Cunningham] if he wants to pursue his appeal." Cunningham also stated that she had spoken to appellant's trial counsel who also had not heard from appellant recently. Cunningham submitted for the trial court's review a set of proposed findings to which the State had no objection.
The trial court has not filed findings of fact. In the absence of findings that appellant has abandoned his appeal or the filing of a motion to dismiss the appeal voluntarily signed by appellant and counsel, the Court will proceed with appellant's appeal.
We ORDER appellate counsel Tara Cunningham to file appellant's brief by June 7, 2019. If Tara Cunningham fails to file a brief for appellant by June 7, 2019, the Court will order her removed as counsel and the trial court will be ordered to appoint new counsel to represent appellant.
We DIRECT the Clerk of the Court to transmit this order, by electronic transmission, to the Honorable Stephanie Mitchell, Presiding Judge, 291st Judicial District Court, and to counsel for the parties.
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE