Opinion
No. 04-18-00861-CR No. 04-18-00862-CR
05-17-2019
Juan ORTIZ, Appellant v. The STATE of Texas, Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CR7171, 2018CR0457
Honorable Sid L. Harle, Judge Presiding
ORDER
Appellant's brief was due February 13, 2019, but was not filed. After a Rule 38.8 notice and two subsequent orders, the brief was due April 30, 2019, but was not filed. On May 7, 2019, we ordered appellant's counsel, Karl A. Basile to file appellant's brief in this court on or before May 14, 2019, ninety days from the original due date. We advised Mr. Basile that if he failed to file the brief, we would abate the matter and remand it to the trial court to determine whether appellant or counsel had abandoned the appeal. Counsel did not file the brief as ordered.
Accordingly, we ORDER this appeal ABATED and the matter REMANDED to the trial court. We ORDER the trial court to conduct a hearing, within twenty days of the date of this order, to determine whether: (1) appellant desires to prosecute his appeal; and (2) whether appointed counsel has abandoned the appeal. See TEX. R. APP. P. 38.8(b)(2). 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 counsel to be present at the hearing.
We further ORDER the trial court to make written findings and conclusions on the above issues. We ORDER the clerk and court reporter to file in this court, on or before June 17, 2019: (1) supplemental clerk's record containing the trial court's written findings of fact, conclusions of law, and recommendations addressing the above issues; 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 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. The clerk should also send the order to counsel pursuant to usual methods of service. We further order the clerk of this court to serve this order on the trial court, counsel for the State, the district 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 17th day of May, 2019.
/s/_________
KEITH E. HOTTLE,
Clerk of Court