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Murnane v. State

Court of Appeals of Texas, Fourth District, San Antonio

December 19, 2013

Timothy Paul MURNANE, Appellant
v.
THE STATE OF TEXAS, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2012CR5755 Honorable Ray Olivarri, Judge Presiding

ORDER

Patricia O. Alvarez, Justice

Appellant's brief was due on September 19, 2013. We granted Appellant's first motion for extension of time to file the brief until October 21, 2013. On October 29, 2013, after no brief or motion for extension of time was filed, we ordered Appellant to file Appellant's brief or a motion to dismiss. Appellant's counsel filed a motion to dismiss this appeal. However, Appellant did not sign the motion. Contra Tex. R. App. P. 42.2 (requiring the appellant's signature to authorize a voluntary motion to dismiss).

On November 20, 2013, we denied counsel's motion to dismiss this appeal and ordered Appellant to file a brief or a motion for extension of time to file the brief not later than December 2, 2013. We warned Appellant that if no brief or motion was filed by that date, we would abate this appeal to the trial court for an abandonment hearing. See Tex. R. App. P. 38.8(b)(2). We also cautioned Appellant's attorney that, to protect Appellant's rights, this court may "initiat[e] contempt proceedings against [A]ppellant's counsel." Id. R. 38.8(b)(4).

As of the date of this order, Appellant has not filed a response to our November 20, 2013 order. Therefore, we ABATE this appeal and REMAND the cause to the trial court. See Tex. R. App. P. 38.8(b); Samaniego v. State, 952 S.W.2d 50, 52–53 (Tex. App.—San Antonio 1997, no pet.). We 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 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. See Tex. R. App. P. 38.8(b)(4).

The trial court may, in its discretion, receive evidence on the first two questions by sworn affidavit from Appellant. The trial court shall order Appellant's counsel to be present at the hearing. See id. R. 38.8(b)(3).

The trial court is further ORDERED to file supplemental clerk's and reporter's records in this court, not later than THIRTY DAYS from the date of this order, which shall include the following: (1) a transcript of the hearing and copies of any documentary evidence admitted, (2) written findings of fact and ...


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