Opinion
NUMBER 13-17-00176-CR
08-23-2017
RUBEN GUTIERREZ JR. A/K/A RUBEN GUTIERREZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On Appeal from the 404th District Court of Cameron County, Texas.
SUPPLEMENTAL ORDER OF ABATEMENT
Before Justices Rodriguez, Contreras, and Benavides
Order Per Curiam
The trial court's certification of the defendant's right to appeal shows that the defendant does not have the right to appeal. See TEX. R. APP. P. 25.2(a)(2). On April 7, 2017, we ordered appellant's counsel, Rebecca RuBane, to, within thirty days, review the record and advise this Court as to whether appellant has a right to appeal. See TEX. R. APP. P. 44.3, 44.4. No response to this Court's order was received. On May 24, 2017, we abated and remanded this cause to the trial court for a hearing to determine why counsel failed to comply with this Court's order.
The trial court advised this Court that appellant's counsel was unavailable for a hearing due to medical leave. An email sent by counsel to the trial court states counsel would not be released to return to work until July 20, 2017. As of this date, counsel has not responded to this Court's order and advised whether appellant has the right to appeal.
This appeal remains abated and the trial court shall conduct a hearing to determine why counsel has failed to comply with this Court's order. The trial court's findings and conclusions shall be included in a supplemental clerk's record. The trial court shall file the supplemental clerk's record and reporter's record, if any, with the Clerk of this Court within thirty days of the date of this order.
If the trial court determines that counsel is unable to represent appellant in this matter, the trial court shall conduct a hearing to determine whether appellant desires to prosecute the appeal, whether appellant is indigent, and whether appellant is entitled to appointed counsel. See Penson v. Ohio, 488 U.S. 75, 83-84 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We further direct the trial court to issue findings of fact and conclusions of law regarding these issues. Should the trial court find that appellant desires to pursue this appeal, is indigent, and is entitled to appointed counsel, the trial court shall appoint counsel. If counsel is appointed, the name, address, email address, telephone number, and state bar number of said counsel shall be included in the trial court's findings of fact and conclusions of law.
PER CURIAM Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 23rd day of August, 2017.