Opinion
13-23-00261-CR
02-12-2024
LUCIANO GARCIA, Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. Tex.R.App.P. 47.2(b).
On appeal from the 117th District Court of Nueces County, Texas.
Before Contreras, Chief Justice and Benavides and Tijerina, Justices.
ORDER OF ABATEMENT
PER CURIAM
This matter is before the Court upon its own motion. After two extensions of time to file, appellant's brief was due to be filed on or before January 8, 2024. On January 9, 2024, the Clerk of the Court sent notice to appellant's counsel indicating the brief was past due and requesting the brief to be filed within ten days of the notice. To date, appellant's counsel has failed to respond to the notice, failed to request an extension of time, and has provided no explanation for her failure to file a brief.
Accordingly, 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 new 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 filed in a supplemental clerk's record. Furthermore, the trial court shall cause a supplemental reporter's record of any additional 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 on or before the expiration of thirty days from the date of this order.