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Sandoval v. State

Court of Appeals of Texas, First District, Houston

December 5, 2017

Gustavo Uriel Sandoval
v.
The State of Texas

         331st District Court of Travis County No. D-1-DC-17-904007

          ORDER OF ABATEMENT

          Laura C. Higley, Judge.

         On 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 2016).

         The 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.

         Accordingly, 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 teleconferencing.[1]

         The 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 this appeal;
(2) if appellant does wish to prosecute this appeal, determine whether counsel John S. Butler has abandoned this appeal;
(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 hearing;
(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 indigent, and:
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 ...

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