Opinion
No. 04-16-00135-CR
10-21-2016
Darrell MOSQUEDA, Appellant v. The STATE of Texas, Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR4036
Honorable Kevin M. O'Connell, Judge Presiding
ORDER
Counsel was advised on October 11, 2016, that this appeal would be abated for abandonment hearing if he did not file proof by October 14, 2016, that he completed with the requirements of Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014) to (1) notify appellant that counsel has filed an Anders brief and motion to withdraw and enclose copies of the documents, (2) inform appellant of his right to review the appellate record and file a pro se brief, (3) inform appellant of his right to file a pro se petition for discretionary review should the court of appeals determine the appeal is frivolous, and (4) "take concrete measures to initiate and facilitate the process of actuating [appellant's] right to review the appellate record, if that is what [appellant] wishes." Id.
Pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we abate this case to the trial court and order the trial court to conduct a hearing to determine whether counsel has 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.
The trial court is further ordered to make written findings and conclusions on these issues. The trial court clerk, Donna Kay McKinney, and court reporter are ordered to file in this court, no later than November 10, 2016, (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).
/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 21st day of October, 2016.
/s/_________
Keith E. Hottle
Clerk of Court