Opinion
NO. 03-16-00529-CR
02-13-2018
Mark Anthony Martinez, Appellant v. The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2013-525 , THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING ORDER AND MEMORANDUM OPINION
PER CURIAM
Appellant's brief was originally due on January 9, 2017. After the Court granted two motions for extension of time, counsel did not file a brief by the date ordered. We abated the appeal and remanded the cause to the district court for a hearing under Rule 38.8(b) of the Texas Rules of Appellate Procedure. Following the hearing, the trial court made findings and recommendations that (1) the appeal has not been abandoned, (2) counsel admittedly failed to file a brief, (3) appellant has not been denied effective assistance of counsel, (4) appellant's counsel should not be removed and appellant does not request his removal, (5) appellant is indigent and entitled to court-appointed counsel, and (6) the appeal should be reinstated and appellant's counsel should be ordered to file appellant's brief within 30 days of the reinstatement of the appeal.
Accordingly, the Court reinstated the case and informed the parties that appellant's brief was due on November 3, 2017. On November 30, 2017, this Court sent a notice to appellant informing him that his brief was overdue and that a failure to file a satisfactory response by December 11, 2017, would result in the referral of this case to the trial court for a hearing under Rule 38.8(b) of the Texas Rules of Appellate Procedure. To date, appellant's brief has not been filed, nor have we received a response from counsel.
We therefore abate the appeal and once again remand the cause to the trial court. The trial court shall conduct a hearing to determine whether appellant desires to prosecute this appeal and, if so, whether counsel has abandoned this appeal. The court shall make appropriate written findings and recommendations. If necessary, the court shall appoint substitute counsel who will effectively represent appellant in this appeal. Following the hearing, which shall be transcribed, the trial court shall order the appropriate supplemental clerk's and reporter's records—including all findings and orders—to be prepared and forwarded to this Court no later than March 15, 2018.
See Tex. R. App. P. 38.8(b)(2), (3).
See Tex. R. App. P. 38.8(b)(2), (3).
It is so ordered February 13, 2018. Before Justices Puryear, Pemberton, and Bourland Abated and Remanded Filed: February 13, 2018 Do Not Publish