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In re J.A.C.

Court of Appeals of Texas, Eighth District, El Paso

September 27, 2019

In the Matter of J.A.C., a Juvenile.

          Appeal from the 65th District Court of El Paso County, Texas (TC# 1800828)

          ORDER

          PER CURIAM

         This juvenile case has been preliminarily set on this Court's dismissal docket. We must determine whether we can dismiss the appeal under these circumstances following a failure to file an appellant's brief. For the reasons that follow, we hereby ORDER the appellate timetables to be reinstated. We will provide counsel for the juvenile one more opportunity to file a brief with this Court. The Appellant's Brief will be due 30 days from this order.

         BACKGROUND

         On May 13, 2019, the attorney for juvenile J.A.C. filed a motion to dismiss this appeal from a juvenile court delinquency adjudication. We denied the motion to dismiss, holding that our opinion in In re E.J.E., 557 S.W.3d 615 (Tex.App.-El Paso 2007, op. on motion) required a motion to dismiss a juvenile case to be supported by a written waiver of the juvenile's right to appeal in accordance with Section 51.09 of the Texas Family Code. The Court gave Appellant ten days to correct the defect, but Appellant did not do so. Thus, we set a briefing schedule and ordered Appellant to file a brief no later than June 29, 2019.

         Appellant did not file a brief in this case, even after he was prompted to do so by a late-notice letter sent from the Clerk's Office. On July 25, 2019, we ordered the trial court to conduct a hearing to determine if Appellant wished to continue the appeal or if Appellant wished to waive his right to appeal. If Appellant wished to continue his appeal, the trial court was directed to determine whether Appellant had been deprived of the effective assistance of counsel.

         Per our order, the trial court conducted a hearing on August 20, 2019. Present at the hearing were the juvenile's attorney, the juvenile's mother, and the juvenile's former probation officer. The juvenile was not present.

         The Appellant's mother testified that at the time of the offense, her son was 11 years old and that she made the decisions regarding the criminal justice process. She further testified that she had originally wanted to appeal the decision because it would have affected their housing situation, but that during the duration of the appeal, her son had left El Paso. In response to a question from the trial court, she testified that it had not been her son's decision to appeal, but that she had made the decision to appeal on his behalf.

         The juvenile's probation officer testified that she terminated his probation because CPS got involved in the case and the juvenile was placed outside of the mother's home in El Paso before he was moved to Juarez, Mexico, with his father. She confirmed an explanation made by the trial judge on the record that the arrangement the parties had reached had been to terminate probation because the juvenile was going to live in Juarez with his father and thus the probation department would not be allowed to make contact with the child. However, the probation officer testified that she had that day learned that the juvenile was now apparently located in Phoenix, Arizona, for a period of at least a week prior to the hearing. She conceded that getting ahold of the child had been difficult.

         At the end of the hearing, the trial court and counsel for the juvenile had the following colloquy:

THE COURT: Okay. And just so that I understand what happened. So when you asked for the appeal it's because the mother had told you or had made some sort of comment that she thought they were going to lose their housing because of the fact that he got adjudicated.
MR. SPENCER: That's correct, Judge.
THE COURT: And that's when you decided that you wanted to go ahead and file the appeal.
MR. SPENCER: That's correct, Judge.
THE COURT: But we actually found out that in reality the reason she was going to be kicked out of the -- the complex was having to do with her boyfriend.
MR. SPENCER: That's correct, Judge.
THE COURT: And so she actually ended up losing housing in part because of the fact that the boyfriend went ...

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