Opinion
No. 04-18-00581-CR
02-20-2019
Justin LUNA, Appellant v. The STATE of Texas, Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR9367
Honorable Joey Contreras, Judge Presiding
ORDER
Appellant's brief was originally due December 14, 2018, but was not filed. This court notified appellant's counsel of the deficiency on December 18, 2018. See TEX. R. APP. P. 38.8(b)(2). On December 28, 2018, appellant responded by filing a motion for extension of time, requesting an additional thirty days in which to file appellant's brief. The court granted the motion and ordered appellant to file the brief in this court on or before January 14, 2019. Neither the brief nor a motion for extension of time to file the brief was filed. We therefore ordered appellant's appointed appellate counsel, Mr. Pat Montgomery, to file appellant's brief in this court on or before February 13, 2019. We advised that if neither the brief nor an extension of time to file the brief was filed in this court on or before the due date, we would order the appeal abated and remanded to the trial court for a hearing to determine whether appellant or appointed counsel has abandoned the appeal. Again, neither a brief nor an extension was filed.
Pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we ORDER this appeal ABATED and REMANDED to the trial court. See id. We ORDER the trial court to conduct a hearing to determine whether: (1) appellant desires to prosecute his appeal, and (2) counsel has abandoned the appeal. Because appellant is indigent, the trial court must take steps to ensure effective assistance of counsel, including the appointment of new counsel if necessary. The 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 appointed counsel to be present at the hearing.
We further ORDER the trial court to make written findings and conclusions on these issues. We ORDER the trial court clerk and the court reporter to file in this court, on or before March 22, 2019: (1) a supplemental clerk's record containing the trial court's written findings of fact, conclusions of law, and recommendations addressing the issues set out above; and (2) a reporter's record of the hearing. See id. R. 38.8(b)(3).
We order the clerk of this court to serve this order on appellant's appointed counsel by first class United States mail and by certified mail, return receipt requested, with delivery restricted to addressee only, or give other personal notice of this order with proof of delivery. We also order the clerk of this court to serve a copy of this order on the trial court, counsel for the State, the trial court clerk, and the court reporter.
/s/_________
Beth Watkins, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 20th day of February, 2019.
/s/_________
KEITH E. HOTTLE,
Clerk of Court