Opinion
05-23-00118-CR
11-13-2023
JAMES ANTHONY GUTIERREZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-81270-2021.
ORDER
ERIN A. NOWELL, JUSTICE.
Appellant's brief is overdue. Appellant's brief was originally due June 15, 2023. On June 26, 2023, appellant's counsel Kristin R. Brown filed a motion for extension of time to file the brief, which this Court granted ordering appellant's brief be filed by July 15, 2023. On August 2, 2023, Ms. Brown filed a second motion for extension of time to file the brief, which this Court granted on August 4, 2023, ordering Ms. Brown to file appellant's brief by September 5, 2023. On September 5, 2023, Ms. Brown filed a third motion for extension of time to file the brief, which this Court granted on September 7, 2023, ordering Ms. Brown to file appellant's brief by October 5, 2023. Our orders cautioned Ms. Brown that if appellant's brief was not filed by those dates, the appeal might be abated for the trial court to make findings in accordance with Rule of Appellate Procedure 38.8. As of the date of this order, appellant's brief has not been filed.
Accordingly, the Court ORDERS the trial court to conduct a hearing to determine why appellant's brief has not been filed. In this regard, the trial court shall make appropriate findings and recommendations and determine whether appellant desires to prosecute the appeal, whether appellant is indigent, or if not indigent, whether retained counsel has abandoned the appeal. See Tex. R. App. P. 38.8(b). If the trial court cannot obtain appellant's presence at the hearing, the trial court shall conduct the hearing in appellant's absence. See Meza v. State, 742 S.W.2d 708 (Tex. App.-Corpus Christi 1987, no pet.) (per curiam). If appellant is indigent, the trial court is ORDERED to take such measures as may be necessary to assure effective representation, which may include appointment of new counsel.
We ORDER the trial court to transmit a record of the proceedings, which shall include written findings and recommendations, to this Court within THIRTY DAYS of the date of this order.
This appeal is ABATED to allow the trial court to comply with the above order. The appeal shall be reinstated when the trial court's findings are received, whichever is earlier.
We DIRECT the Clerk to send copies of this order to the Honorable Tomasz Nowak, Presiding Judge, 366th Judicial District Court; Michael Gould, Collin County District Clerk; Antoinette Varela, Official Court Reporter, 366th Judicial District Court; and counsel for all parties.