Opinion
No. 04-15-00596-CR
04-29-2016
Isidro Espinosa SOLIS, Appellant v. The STATE of Texas, Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR2691
Honorable Mary D. Roman, Judge Presiding
ORDER
Sitting: Sandee Marion, Chief Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice
Appellant's brief was due April 1, 2016, but it was not filed. This court notified appellant's retained counsel, John D. Herrick, of the deficiency by letter on April 5, 2016. See TEX. R. APP. P. 38.8(b)(2). Our letter required that a brief or response be filed by April 15, 2016. Counsel did not file appellant's brief or otherwise respond to our letter.
On April 20, 2016, we ordered counsel to file either the appellant's brief or a motion for extension of time by April 25, 2016. We further advised counsel that if the brief or a conforming motion were not filed by the date ordered, the court would abate this appeal and remand the case to the trial court for a hearing to determine whether appellant or counsel has abandoned the appeal.
Counsel has not filed appellant's brief, a motion for extension of time to file the brief, or any other response to the court's April 5 letter or April 20 order. Therefore, pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we abate this appeal, remand the case to the trial court, and order the trial court to conduct a hearing to determine:
(1) whether appellant desires to prosecute his appeal;
(2) whether appellant has made the necessary arrangements for filing a brief;
(3) if appellant asserts indigence, whether he is entitled to appointed counsel; if the court finds appellant to be indigent, it must take steps to ensure effective assistance of counsel, including the appointment of counsel; and
(3) whether retained counsel has abandoned the appeal. The trial court should make a finding as to whether John D. Herrick abandoned the appeal even if new counsel is retained or appointed.
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 these issues. We order the clerk and court reporter to file in this court, no later than May 29, 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 29th day of April, 2016.
/s/_________
Keith E. Hottle
Clerk of Court