Court of Appeals of Texas, First District, Houston
District Court of Travis County No. D-1-DC-17-904007
ORDER OF ABATEMENT
C. Higley, Judge.
April 7, 2017, appellant, Gustavo Uriel Sandoval, was
convicted after a jury trial of the second-degree felony
offense of assault of a family member, for which the trial
court assessed his punishment at four years' confinement.
On April 10, 2017, the trial court found appellant indigent
and appointed John S. Butler as his appellate attorney. On
May 4, 2017, appellant, through counsel, filed a notice of
appeal. Then on June 20, 2017, the Texas Supreme Court
transferred this appeal from the Third Court of Appeals to
this Court pursuant to its docket equalization powers.
See Tex. Gov't Code Ann. § 73.001 (West
complete record was filed in the above-referenced appeal on
July 10, 2017, with the filing of the reporter's record,
and appellant's brief was due by August 9, 2017. The
Clerk of this Court then granted three extension requests by
appellant's counsel, setting his brief due by November 7,
2017, with no further extensions to be granted. Because
appellant did not timely file a brief, the Clerk of this
Court sent a late-brief notice on November 16, 2017,
notifying appellant's appointed counsel, John S. Butler,
that this case might be abated for a hearing pursuant to Rule
of Appellate Procedure 38.8(b)(2), if either the brief or an
extension motion were not filed by November 27, 2017.
Appellant failed to timely file his brief.
we sua sponte abate this appeal and
remand for the trial court to immediately
conduct a hearing at which a representative of the Travis
County District Attorney's Office and appellant's
counsel, John S. Butler, shall be present. Tex. R. App.
38.8(b)(2). Appellant shall also be present for the hearing
in person or, if appellant is incarcerated, at the trial
court's discretion, appellant may participate in the
hearing by closed-circuit video
trial court shall have a court reporter record the hearing.
The trial court is directed to:
(1) make a finding on whether appellant wishes to prosecute
(2) if appellant does wish to prosecute this appeal,
determine whether counsel John S. Butler has abandoned this
(3) if counsel John S. Butler has not abandoned this appeal:
a. inquire of counsel the reasons, if any, that he has failed
to file a brief timely on appellant's behalf; and
b. set a date certain when appellant's brief will be due,
regardless of whether this Court has yet reinstated this
appeal and no later than 30 days from the date of the
(4) if John S. Butler has abandoned this appeal, enter a
written order relieving John S. Butler of his duties as
appellant's counsel, including in the order the basis for
the finding of abandonment, determine whether appellant is
a. if appellant is still indigent, appoint substitute
appellate counsel at no expense to appellant;
b. if appellant is not indigent, admonish appellant of the
dangers and disadvantages of ...