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Hernandez v. State

Fourth Court of Appeals San Antonio, Texas
Nov 22, 2017
No. 04-17-00340-CR (Tex. App. Nov. 22, 2017)

Opinion

No. 04-17-00340-CR

11-22-2017

Jacob HERNANDEZ, Appellant v. The STATE of Texas, Appellee


From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR3748
Honorable Melisa Skinner, Judge Presiding

ORDER

Appellant's brief was due on August 31, 2017. We granted Appellant's first and second motions for extension of time to file the brief, with the second extension deadline set for November 1, 2017. In our order granting the second extension, we warned Appellant that "NO FURTHER EXTENSIONS OF TIME TO FILE APPELLANT'S BRIEF WILL BE GRANTED."

Despite our clear warning, on October 31, 2017, court-appointed counsel Robert F. Gebbia filed a third motion for extension of time to file the brief until December 1, 2017. In response, on November 2, 2017, we ordered Robert F. Gebbia to file the brief not later than November 16, 2017. We warned counsel that if he failed to file the brief as ordered, we would immediately and without further notice abate this appeal and remand it to the trial court for an abandonment hearing. To date, counsel has not filed the brief as ordered.

Therefore, we ABATE this appeal and REMAND the cause to the trial court. See TEX. R. APP. P. 38.8(b); Samaniego v. State, 952 S.W.2d 50, 52-53 (Tex. App.—San Antonio 1997, no pet.). We ORDER the trial court to conduct a hearing in compliance with Rule 38.8(b) to answer the following questions:

(1) Does Appellant desire to prosecute his appeal?
(2) Should Robert F. Gebbia be removed from this appeal? If so, the trial court should appoint new counsel.

(3) Has appointed counsel abandoned the appeal? Because sanctions may be necessary, the trial court should address this issue even if new counsel is retained or substituted before the date of the hearing. See TEX. R. APP. P. 38.8(b)(4).
The trial court may, in its discretion, receive evidence on the first question by sworn affidavit from Appellant or by allowing Appellant to appear by electronic means (e.g., telephone or video conference). However, the trial court must order Appellant's counsel to be physically present at the hearing. See id. R. 38.8(b)(3).

The trial court is further ORDERED to file supplemental clerk's and reporter's records in this court, not later than THIRTY DAYS from the date of this order, which shall include the following: (1) a transcription of the hearing and copies of any documentary evidence admitted, (2) written findings of fact and conclusions of law, and (3) recommendations addressing the above enumerated questions. See id. This court will consider the supplemental records in its determination whether to initiate contempt proceedings against Appellant's counsel. See id. R. 38.8(b)(4); In re Fisch, 95 S.W.3d at 732; Samaniego v. State, 952 S.W.2d at 53.

All other appellate deadlines are SUSPENDED pending further order of this court.

/s/_________

Patricia O. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 22nd day of November, 2017.

/s/_________

Keith E. Hottle

Clerk of Court


Summaries of

Hernandez v. State

Fourth Court of Appeals San Antonio, Texas
Nov 22, 2017
No. 04-17-00340-CR (Tex. App. Nov. 22, 2017)
Case details for

Hernandez v. State

Case Details

Full title:Jacob HERNANDEZ, Appellant v. The STATE of Texas, Appellee

Court:Fourth Court of Appeals San Antonio, Texas

Date published: Nov 22, 2017

Citations

No. 04-17-00340-CR (Tex. App. Nov. 22, 2017)