Opinion
No. 04-20-00228-CR
03-09-2021
Jorge RODRIGUEZ, Jr., Appellant v. The STATE of Texas, Appellee
From the 406th Judicial District Court, Webb County, Texas
Trial Court No. 2019CRB000030D4
Honorable Oscar J. Hale, Jr., Judge Presiding
ORDER
Appellant's brief was originally due by December 30, 2020, but was not filed. On January 8, 2021, we ordered appellant to file his brief or a motion for extension of time by January 25, 2021. In that order, we cautioned appellant that if we did not receive a brief or an extension of time by that date, we would abate the appeal to the trial court for an abandonment hearing. See TEX. R. APP. P. 38.8(b)(2). When the brief was not filed, the Clerk of the Court contacted appellant on February 12, 2021 reminding appellant of the late brief, and appellant informed the Clerk that he would file the brief by February 16, 2021. On February 19, 2021, appellant emailed the court and stated he had been unable to file the brief due to Winter Storm Uri, and he would file the brief by February 22, 2021. On February 26, 2021 appellant filed a motion requesting a seven-day extension of time to file the brief. We granted the extension, ordered the brief due by March 5, 2021, and cautioned appellant that if we did not receive a brief by that date, we would abate the appeal to the trial court for an abandonment hearing. See id. At this time, the brief has not been filed.
Pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we ORDER this appeal ABATED and ORDER the trial court to conduct a hearing within thirty days 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.
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 in whatever format the trial court uses as a result of the COVID-19 pandemic.
We further ORDER the trial court to notify this court of the date of the hearing within five days of the date the hearing is set. Finally, we ORDER the district clerk and court reporter to, within 30 days of the date of the hearing, file supplemental clerk's and reporter's records in this court which shall include: (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.
/s/_________
Beth Watkins, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 9th day of March, 2021.
/s/_________
MICHAEL A. CRUZ, Clerk of Court