Opinion
NO. 02-16-00009-CRNO. 02-16-00010-CR
04-19-2016
EX PARTE RONALD ANTHONY PEAVY
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. C-2-010540-0363129-AP, C-2-010539-0363117-AP
ABATEMENT ORDER
It has come to our attention that Appellant's brief has not been filed. Appellant's brief was originally due on February 18, 2016. We have notified the trial court judge and the attorneys of record on February 25, 2016, and again on March 31, 2016, that Appellant's brief has not been filed, as required by rule 38.8(b). See Tex. R. App. P. 38.8(b). Because we have not received a satisfactory response to our prior notification and in accordance with rule 38.8(b), we abate the appeal and remand this case to the trial court.
The trial court shall conduct a hearing, with Appellant and Appellant's counsel, Robert L. Sirianni, Jr., present. Robert L. Sirianni, Jr. signed the notice of appeal on Appellant's behalf for both cause numbers; Robert L. Sirianni, Jr. is, therefore, lead counsel for Appellant. See Tex. R. App. P. 6.1(a). At the hearing, the court shall make the following findings on the record:
1. Determine whether Appellant desires to prosecute the appeal;
2. Determine why counsel has not filed a brief and whether counsel has abandoned the appeal;
3. If counsel has not abandoned the appeal and, after being informed of the consequences of dismissing the appeal, Appellant desires to continue the appeal, determine the exact date that counsel will file a brief on Appellant's behalf in the court of appeals. Inform counsel and Appellant that if the brief is not filed on that date, the court of appeals may consider the appeals without briefs. See Tex. R. App. P. 38.8(b)(4);
4. If appellant wants to continue the appeal but counsel has abandoned the appeal, determine whether appellant is indigent and, if so, whether counsel should be appointed to represent appellant and appoint counsel, if necessary;
5. If appellant desires to proceed pro se, admonish appellant of the dangers and disadvantages of self-representation in accordance with Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975) and Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987) and determine whether appellant's decision to proceed pro se is competently and intelligently made;
6. If appellant desires to retain counsel, inform Appellant that if counsel does not make an appearance in the court of appeals on Appellant's behalf by June 6, 2016, or if Appellant is not able to retain counsel and does not file a pro se brief or motion to extend time to file a pro se brief by June 6, 2016, the court of appeals may consider the appeals without briefs. See Tex. R. App. P. 38.8(b)(4); and
7. Take any other measures that the trial court deems necessary to insure appellant does not forfeit his right to appeal.
If substitute counsel has been appointed to represent appellant, the supplemental record shall reflect that substitute counsel has been notified of the appointment. If appellant is incarcerated, the trial court shall also retain him in the county for a reasonable period of time to allow substitute counsel an opportunity to confer with appellant. --------
The trial court shall file a record of the hearing in this court on or before May 20, 2016. The record shall include a supplemental reporter's record and supplemental clerk's record. Upon our receipt of the supplemental record, the appeal of this cause shall be reinstated automatically without further order.
The clerk of this court shall transmit a copy of this order to the attorneys of record, the trial court judge, the trial court clerk, and the court reporter.
DATED April 19, 2016.
PER CURIAM