Opinion
No. 04-15-00596-CR
10-13-2016
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
Isidro Espinosa Solis's appeal has been pending in this court since September 2015. After appellant's counsel was disbarred in July 2016, the trial court appointed Patrick Montgomery to represent Solis. We ordered Montgomery to file Solis's appellant's brief by September 22, 2016, but the brief was not filed. This court notified Montgomery of the deficiency by letter on September 27. See TEX. R. APP. P. 38.8(b)(2). Our letter advised counsel that this appeal would be abated for an abandonment hearing if he failed to respond within ten days. Montgomery has not filed appellant's brief or otherwise responded to our letter.
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, and
(2) whether counsel has abandoned the appeal. The trial court must take steps to ensure effective assistance of counsel, including the appointment of new counsel if necessary. Because sanctions may be necessary, the trial court should make a finding as to whether Patrick Montgomery abandoned the appeal even if new counsel is retained or substituted.
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 November 14, 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 13th day of October, 2016.
/s/_________
Keith E. Hottle
Clerk of Court