Opinion
No. 04-16-00838-CR
05-22-2017
Avie Lee LOZANO, Appellant-s v. The STATE of Texas, Appellee-s
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR8489
Honorable Sid L. Harle, Judge Presiding
ORDER
Appellant Avie Lee Lozano's brief was originally due March 16, 2017, but it was not filed. This court notified appellant's court-appointed counsel, David Hesse, of the deficiency by letter. Counsel did not timely respond to the letter, but subsequently filed a motion for extension of time to file the brief. On April 12, 2017, we ordered counsel to file appellant's brief by May 15, 2017 (60 days after the original deadline). Our order advised that no further extensions of time would be granted absent a showing of extraordinary circumstances and further advised that if the brief or conforming motion were not filed by the date ordered, the appeal would be abated for an abandonment hearing. No brief or motion for extension of time has been filed.
Pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we abate this appeal, remand the case to the trial court, and order the trial court to conduct a hearing to determine:
(1) whether appellant desires to prosecute his appeal, andThe trial court may, in its discretion, receive evidence on the first issue by sworn affidavit from the appellant. The trial court shall, however, order appellant's counsel to be present at the hearing.
(2) whether counsel has abandoned the appeal. The trial court must take steps to ensure effective assistance of counsel, including the appointment of new counsel if necessary. Because sanctions may be necessary, the trial court should make a finding as to whether counsel has abandoned the appeal even if new counsel is retained or substituted.
We further order the trial court to make written findings and conclusions on these issues. We order the clerk and court reporter to file in this court, no later than June 21, 2017, (1) a reporter's record of the hearing, and (2) a supplemental clerk's record containing the court's written findings of fact, conclusions of law, and recommendations addressing the above issues. See Tex. R. App. P. 38.8(b)(3).
The court will consider possible contempt proceedings for failing to comply with this court's April 12, 2017 order at a later date.
/s/_________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 22nd day of May, 2017.
/s/_________
Keith E. Hottle
Clerk of Court