Opinion
No. 04-16-00079-CR
08-03-2016
Daniel RODRIGUEZ, Appellant v. The STATE of Texas, Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2006CR4842
Honorable Steve Hilbig, Judge Presiding
ORDER
On July 21, 2016, we notified Appellant's retained counsel Saul R. Acevedo that Appellant's brief has not been filed in this appeal. We ordered Appellant's counsel to file the brief or a motion to dismiss this appeal not later than August 1, 2016. We cautioned Appellant's counsel that if Appellant failed to respond within the time provided we would abate this appeal to the trial court for an abandonment hearing at which the trial court would be asked to determine whether attorney sanctions are appropriate. See TEX. GOV'T CODE ANN. § 21.002 (West 2004) (authorizing punishment up to "a fine of not more than $500 or confinement in the county jail for not more than six months, or both such a fine and confinement in jail"); In re Fisch, 95 S.W.3d 732, 732 (Tex. App.—Houston [1st Dist.] 2003, order) (per curiam) (issuing a contempt order for attorney's failure to file a brief as ordered). To date, we have received no response to our July 21, 2016 order.
Therefore, we ABATE this appeal and REMAND the cause to the trial court. See TEX. R. APP. P. 38.8(b); Samaniego v. State, 952 S.W.2d 50, 52-53 (Tex. App.—San Antonio 1997, no pet.). We ORDER the trial court to conduct a hearing in compliance with Rule 38.8(b) to answer the following questions:
(1) Does Appellant desire to prosecute his appeal?
(2) Is Appellant indigent? If Appellant is indigent, the trial court shall take such measures as may be necessary to assure the effective assistance of counsel, which may include the appointment of new counsel.
(3) Has appointed or retained counsel 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. See TEX. R. APP. P. 38.8(b)(4).
The trial court may, in its discretion, receive evidence on the first two questions by sworn affidavit from appellant. The trial court shall, however, order Appellant's counsel to be present at the hearing. See id. R. 38.8(b)(3).
The trial court is further ORDERED to file supplemental clerk's and reporter's records in this court, not later than THIRTY DAYS from the date of this order, which shall include the following: (1) a transcription of the hearing and copies of any documentary evidence admitted, (2) written findings of fact and conclusions of law, and (3) recommendations addressing the above enumerated questions. See id. This court will consider the supplemental records in its determination whether to initiate contempt proceedings against Appellant's counsel. See id. R. 38.8(b)(4); In re Fisch, 95 S.W.3d at 732; Samaniego v. State, 952 S.W.2d at 53.
All other appellate deadlines are SUSPENDED pending further order of this court.
/s/_________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 3rd day of August, 2016.
/s/_________
Keith E. Hottle
Clerk of Court