Opinion
No. 04-18-00525-CR
03-14-2019
Braulio TIRADO-MORALES, Appellant v. The STATE of Texas, Appellee
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 6201
Honorable Maria Teresa Herr, Judge Presiding
ORDER
Appellant's brief in these companion cases was originally due to be filed on January 11, 2019. After neither the brief nor a motion for extension of time to file the brief was filed, we notified appellant's counsel via letter that the brief was late and requested a response by no later than January 28, 2019. Because appellant did not respond to our letter or file a brief or motion for extension of time to file the brief, we ordered appellant's counsel to file a response stating a reasonable explanation for failing to timely file the brief and demonstrating the steps being taken to remedy the deficiency. In response to our order, appellant filed motions for extension of time to file appellant's brief in both causes, requesting an additional forty-five days to file the brief. We granted the motion, ordered that appellant's brief be filed no later than February 25, 2019, and advised appellant that further requests for extension of time would be disfavored. Appellant did not file a brief or a motion for extension of time to file the brief.
On February 27, 2019, we ordered appellant's attorney to respond to this court in writing by March 11, 2019 stating a reasonable explanation for failing to timely file the brief and demonstrating the steps being taken to remedy the deficiency. We advised appellant's attorney that if he failed to file an adequate response, this appeal would be abated to the trial court for an abandonment hearing, and the trial court would be asked to consider whether sanctions are appropriate. TEX. R. APP. P. 38.8(b)(2). As of the date of this order, we have received no response.
Pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we abate this case to the trial court and ORDER the trial court to conduct a hearing 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 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 the appellant. The trial court shall, however, order the appellant's counsel to be present at the hearing.
The trial court is further ORDERED to file supplemental clerk's and reporter's records in this court within thirty (30) days of the date of this order, 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. All appellate filing dates are ABATED pending further orders from this court.
/s/_________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 14th day of March, 2019.
/s/_________
KEITH E. HOTTLE,
Clerk of Court