Ex Parte Fabian Garcia ( 2020 )

NUMBER 13-18-00607-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG EX PARTE FABIAN GARCIA On appeal from the 206th District Court of Hidalgo County, Texas. ORDER OF ABATEMENT Before Justices Benavides, Hinojosa, and Tijerina Order Per Curiam Appellant’s brief was originally due on December 21, 2018. On January 17, 2019, current counsel made an appearance in the case and was then granted an extension of time to file a brief until March 21, 2019. On March 25, 2019, the Clerk of the Court notified appellant’s counsel that the brief had not been filed and requested a response concerning the failure to file the brief within ten days. On April 4, 2020, Counsel again requested and was granted a new deadline of June 7, 2019. On June 12, 2019, the Clerk of the Court notified appellant’s counsel that the brief again had not been filed and again requested a response concerning the failure to file the brief within ten days. On June 21, 2019, appellant’s counsel filed a motion for extension of time requesting a new deadline of August 21, 2019. The court granted this motion by order and informed counsel no further extensions would be granted absent exigent circumstances. On July 15, 2019 and September 30, 2019, the court received supplemental records. As such, the appellant was granted additional extensions each time with new deadlines. On November 1, 2019, the Clerk of the Court notified appellant’s counsel that the brief had not been filed and requested a response concerning the failure to file the brief within ten days. In response, on November 11, 2019, appellant’s counsel again filed a motion for extension for deadline to file brief which was granted by order setting a new deadline to file a brief on or before December 23, 2019. On December 23, 2019, appellate counsel filed its seventh motion for an extension citing a missing exhibit as the cause for delay. On January 6, 2020, the record was supplemented with the exhibit at issue and a subsequent order granting an extension with the new deadline on February 21, 2020. To date, the Court has yet to receive appellant’s brief. Accordingly, we now ABATE this appeal and REMAND the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure. Upon remand, the trial court shall utilize whatever means necessary to make appropriate findings and recommendations concerning the following: (1) whether appellant desires to prosecute this appeal; (2) why appellant's counsel has failed to file a 2 brief and whether counsel has effectively abandoned the appeal; (3) whether appellant has been denied effective assistance of counsel; (4) whether appellant's counsel should be removed; and (5) whether appellant is indigent and entitled to court-appointed counsel. If the trial court determines that appellant does want to continue the appeal, that present counsel should be removed, and that appellant is indigent and entitled to court-appointed counsel, the trial court shall appoint new counsel to represent appellant in this appeal. If new counsel is appointed, the name, address, email address, telephone number, and state bar number of said counsel shall be included in an order appointing counsel. The trial court shall cause its findings and recommendations, together with any orders it may enter regarding the aforementioned issues, to be included in a supplemental clerk's record. Furthermore, the trial court shall cause a supplemental reporter's record of any proceedings to be prepared. The supplemental clerk's record and supplemental reporter's record, if any, shall be filed with the Clerk of this Court on or before the expiration of thirty days from the date of this order. IT IS SO ORDERED. PER CURIAM Do not publish Tex. R. App. P. 47.2(b) Delivered and filed the 2nd day of March, 2020. 3