Opinion
Appellate case number: 01-15-00056-CR
04-28-2016
Juan Ruben Garcia v. The State of Texas
ORDER OF ABATEMENT Trial court case number: 65014 Trial court: 300th District Court of Brazoria County
Appellant, Juan Ruben Garcia, was convicted of aggravated sexual assault of a child and was placed on placed on community supervision for ten years. Appellant timely filed a notice of appeal from the judgment. The clerk's record was filed on February 2, 2105 and the reporter's record was filed on March 17, 2015. The deadline for filing appellant's brief was set for April 17, 2015. See TEX. R. APP. P. 38.8(a)(2).
After receiving multiple extensions of time to file appellant's brief, appellant's retained counsel, Stanley G. Schneider, filed a motion on August 8, 2015 to withdraw from representation because counsel determined that the appeal is frivolous. See TEX. R. APP. P. 6.5. On August 20, 2015, this Court granted retained counsel's motion to withdraw, and instructed appellant to file a brief either pro se or through newly retained counsel within thirty days. On September 23, 2015, the Clerk of this Court notified appellant that a brief had not been timely filed and that if this Court did not receive his brief or a motion for extension of time within ten days of that notice, it would abate the appeal and direct the trial court to conduct a hearing in accordance Texas Rule of Appellate Procedure 38.8(b)(2). To date, appellant has not filed a brief.
Accordingly, we abate this appeal and remand the cause to the trial court to immediately conduct a hearing in accordance with Texas Rule of Appellate Procedure 38.8. The trial court shall have a court reporter record the hearing. We direct the trial court to:
1) make a finding on whether appellant wishes to prosecute this appeal;
2) if appellant does not wish to prosecute the appeal, provide a final deadline by which appellant and, if applicable, appellant's counsel, sign a written motion to dismiss that complies with Texas Rule of Appellate Procedure 42.2(a), and file it with the Clerk of this Court, which shall be no more than 30 days from the date of the hearing;
3) if appellant does wish to prosecute this appeal, determine whether he has retained new counsel or abandoned the appeal;
4) if appellant has retained new counsel that has not abandoned the appeal:
a. inquire of counsel the reasons, if any, that he has failed to file a brief on appellant's behalf; and
b. set a date when appellant's brief is due, regardless of whether this Court has yet reinstated the appeal and no later than 30 days from the date of the hearing;
5) if appellant has retained new counsel but that counsel has abandoned the appeal, enter a written order relieving retained counsel of his duties as appellant's counsel, including in the order the basis for the finding of abandonment, determine whether appellant is indigent, and:
a. if appellant is still indigent, appoint substitute appellate counsel at no expense to appellant;
b. if appellant is not indigent, admonish appellant of the dangers and disadvantages of self-representation, and:
i. determine whether appellant is knowingly and intelligently waiving his right to counsel; and
ii. if so, obtain a written waiver of the right to counsel and provide appellant with a copy of a written order setting a date when appellant's pro se brief is due, regardless of whether this Court has yet reinstated the appeal and no later than 30 days from the date of the hearing; or
iii. if appellant is not indigent and does not wish to proceed pro se, provide a deadline by which appellant must hire an attorney, which must be no more than 30 days from the date of the hearing;
6) make any other findings and recommendations the trial court deems appropriate; andSee TEX. CODE CRIM. PROC. art. 1.051(a), (d)(1), (f); TEX. R. APP. P. 38.8(b); Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003); Webb v. State, 533 S.W.2d 780, 784, 785 (Tex. Crim. App. 1976); cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g).
7) enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.
The court coordinator of the trial court shall set a hearing date no later than 30 days from the date of this order and notify the parties and the Clerk of this Court of such date. The trial court clerk is directed to file a supplemental clerk's record containing the trial court's findings, recommendations, and any order made. See TEX. R. APP. P. 34.5(c). These records must be filed within 30 days of the date of the hearing. The court reporter is directed to file the supplemental reporter's record of the hearing within 30 days of the date of the hearing.
This appeal is abated, treated as a closed case, and removed from this Court's active docket. This appeal will be reinstated on this Court's active docket when the supplemental clerk's record and the supplemental reporter's record are filed in this Court. The court coordinator of the trial court shall set a hearing date and notify the parties and the Clerk of this Court of such date.
If appellant files a motion to dismiss which complies with Texas Rule of Appellate Procedure 42.2(a) within 15 days of the date of this order, together with a motion requesting that we reinstate the appeal, we may withdraw this order and reinstate the appeal.
It is so ORDERED. Judge's signature: _/s/ Michael Massengale
[×] Acting individually [ ] Acting for the Court Date: April 28, 2016