Kristi Rhodes Delagarza v. State ( 2018 )

Abatement Order filed September 18, 2018
In The
Fourteenth Court of Appeals
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NO. 14-17-00878-CR
NO. 14-17-00879-CR
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KRISTI RHODES DELAGARZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Court at Law No. 2
Galveston County, Texas
Trial Court Cause Nos. MD-0365736 and MD-0365735
ABATEMENT ORDER
Appellant’s appointed counsel, James M. Bennett, filed a brief on March 30,
2018, raising a single issue related to appellant’s conviction in trial court cause
number MD-0365736 (appeal number 14-17-00848-CR) for driving while
intoxicated. Bennett did not raise a separate issue challenging appellant’s conviction
in trial court cause number MD-0365735 (appeal number 14-17-00849-CR) for
possession of less than 28 grams of a controlled substance in Penalty Group 3.
Counsel’s failure to raise any issues addressing the evading arrest or detention with
previous conviction without following the procedures of Anders v. California, 386
U.S. 738, 742–44 (1967), deprives appellant of effective assistance of counsel.
On July 24, 2018, we ordered Bennett to file an amended brief in compliance
with the appellate rules and the Anders procedure in this court by August 23, 2018.
We notified the parties on August 28, 2018, that no brief had been filed. No response
has been received.
Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of
County Court at Law No. 2 shall (1) immediately conduct a hearing, at which
appellant, appellant’s counsel, and state’s counsel shall participate, either in person
or by video teleconference, to determine (a) whether appellant desires to prosecute
her appeals; (b) whether appellant is indigent; (c) if not indigent, whether appellant
has abandoned the appeals or whether appellant has failed to make necessary
arrangements for filing an amended brief that complies with Anders; (d) the reason
for the failure to file an amended brief; (e) if appellant desires to continue the
appeals, a date certain when appellant’s amended brief will be filed; and (2) prepare
a record, in the form of a reporter’s record, of the hearing. If appellant is indigent,
the judge shall take such measures as may be necessary to assure effective
representation of counsel, which may include the appointment of new counsel. The
judge shall see that a record of the hearing is made, shall make findings of fact and
conclusions of law, and shall order the trial clerk to forward a transcribed record of
the hearing and a supplemental clerk’s record containing the findings and
conclusions. Those records shall be filed with the clerk of this court on or before
October 18, 2018.
The appeals are abated, treated as closed cases, and removed from this court’s
active docket. The appeals will be reinstated on this court’s active docket when the
trial court’s findings and recommendations are filed in this court. The court will also
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consider an appropriate motion to reinstate the appeals filed by either party, or the
court may reinstate the appeals on its own motion. It is the responsibility of any party
seeking reinstatement to request a hearing date from the trial court and to schedule
a hearing in compliance with this court’s order. If the parties do not request a hearing,
the court coordinator of the trial court shall set a hearing date and notify the parties
of such date.
PER CURIAM
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RULE 38. REQUISITES OF BRIEFS
Tex. R. App. P. 38.8. Failure of Appellant to File Brief.
(b) Criminal Cases.
(1) Effect. An appellant’s failure to timely file a brief does not authorize
either dismissal of the appeal or, except as provided in (4), consideration of the
appeal without briefs.
(2) Notice. If the appellant’s brief is not timely filed, the appellate clerk
must notify counsel for the parties and the trial court of that fact. If the appellate
court does not receive a satisfactory response within ten days, the court must order
the trial court to immediately conduct a hearing to determine whether the appellant
desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent,
whether retained counsel has abandoned the appeal, and to make appropriate
findings and recommendations.
(3) Hearing. In accordance with (2), the trial court must conduct any
necessary hearings, make appropriate findings and recommendations, and have a
record of the proceedings prepared, which record—including any order and
findings—must be sent to the appellate court.
(4) Appellate Court Action. Based on the trial court’s record, the
appellate court may act appropriately to ensure that the appellant’s rights are
protected, including initiating contempt proceedings against appellant’s counsel. If
the trial court has found that the appellant no longer desires to prosecute the appeal,
or that the appellant is not indigent but has not made the necessary arrangements for
filing a brief, the appellate court may consider the appeal without briefs, as justice
may require.
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