Opinion
No. 05-16-00355-CR
02-28-2017
OSCAR EDGARDO FERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas
Trial Court Cause No. F14-76143-X
ORDER
We REINSTATE this appeal.
Appellant's brief was originally due September 3, 2016. Although we granted two extensions of time to file the brief, appellant did not file his brief nor did he communicate with the Court. On November 15, 2016, we ordered the trial court to conduct a hearing to determine why appellant's brief had not been filed. We instructed the trial court to make appropriate findings and recommendations and determine whether appellant desired to prosecute the appeal, whether appellant was indigent, or if not indigent, whether retained counsel had abandoned the appeal. See TEX. R. APP. P. 38.8(b). We also instructed the trial court to take whatever measures as might have been necessary to assure effective representation, including the appointment of new counsel. Despite our November 2016 order and follow-up correspondence, the trial court has failed to hold a hearing as ordered.
In order for this appeal to proceed, we ORDER the trial court to determine the following:
• Whether appellant wants to prosecute the appeal, see TEX. R. APP. P. 38.8(b)(2);
• Whether retained counsel has abandoned the appeal, see TEX. R. APP. P. 38.8(b)(2);
• Whether appellant is indigent, see TEX. R. APP. P. 38.8(b)(2);
• Why a timely appellate brief has not been filed on behalf of appellant, see TEX. R. APP. P. 38.6, 38.8(b)(2);
• Whether appellant has been denied the effective assistance of counsel due to counsel's failure to timely file an appellate brief, see Ex parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005) (holding a "reasonably competent attorney—regardless of whether he is retained or appointed—must seek to advance his client's best defense in a reasonably competent manner.") ;
• Whether new counsel should be appointed; and
• If appellant wants to continue the appeal, the date the Court may expect appellant's brief to be filed.
If the trial court determines that appellant desires to prosecute the appeal but retained counsel has abandoned the appeal, the trial court shall determine if appellant has retained new counsel and, if so, the name, State Bar number, and contact information for retained counsel. If retained counsel has abandoned the appeal but appellant is, in fact, indigent and entitled to proceed without payment of costs for the reporter's record, the trial court shall make a finding to that effect and shall take such measures as may be necessary to assure effective representation, including appointment of new counsel.
We ORDER the trial court to transmit a record, containing the written findings of fact, any supporting documentation, and any orders, to this Court within TWENTY DAYS of the date of this order.
This appeal is ABATED to allow the trial court to comply with this order. The appeal shall be reinstated thirty days from the date of this order or when the findings are received, whichever is earlier.
We DIRECT the Clerk to send copies of this order to the Honorable Jeanine Howard, Presiding Judge, Criminal District Court No. 6; James Guinan; Christina O'Neil, senior staff attorney for the Criminal District Courts; and the Dallas County District Attorney's Office.
/s/ ADA BROWN
JUSTICE