Opinion
No. 04-13-00395-CR
03-07-2014
Rigo GUERRA, Appellant v. The STATE of Texas, Appellee
From the 81st Judicial District Court, La Salle County, Texas
Trial Court No. 11-09-00042-CRL
Honorable Donna S. Rayes, Judge Presiding
ORDER
By order dated February 4, 2014, this appeal was abated to the trial court for an abandonment hearing pursuant to TEX. R. APP. P. 38.8(b) because appellant's attorney had failed to file the appellant's brief despite being granted three extensions of time to file the brief. On February 27, 2014, appellant's attorney filed a motion to abate, stating the record was incomplete and the missing record "is essential to an adequate presentation of appellant's allegations of error." Appellant's attorney further stated that he had been unable to contact the court reporter to determine whether the record in question was available. Finally, appellant's attorney stated that the appeal would need to be abated for the entry of findings of fact and conclusions of law.
By order dated March 6, 2014, the trial court's motion requesting an extension of time to conduct the abandonment hearing was granted. The order notified the trial court of the motion to abate that appellant's attorney had filed and requested that the trial court also make recommendations on the issues raised in that motion at the abandonment hearing.
After this court's order issued on March 6, 2014, appellant's attorney filed the appellant's brief despite the fact that no additional reporter's record had been filed. Therefore, based on the statements made by appellant's attorney in his motion to abate, it appears that the brief has been filed despite the record not containing a portion of the record "essential to the adequate presentation of appellant's allegations of error."
Before this court is permitted to take action "to ensure that appellant's rights are protected, including initiating contempt proceedings against appellant's counsel," this court is required to obtain a record from the trial court containing the trial court's findings and recommendations from an abandonment hearing. TEX. R. APP. P. 38.8(b)(4). It is therefore ORDERED that the trial court proceed with the abandonment hearing scheduled for March 14, 2014, in accordance with this court's order dated March 6, 2014.
__________________________
Catherine Stone, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 7th day of March, 2014.
__________________________
Keith E. Hottle
Clerk of Court