Delfino Maldonado v. State ( 2016 )

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Delfino Maldonado v. The State of Texas Appellate case number: 01-16-00096-CR; 01-16-00307-CR Trial court case number: 1310476 Trial court: 337th District Court of Harris County Appellant’s appointed counsel, Daucie Schindler, has not filed a brief on appellant’s behalf in the above-referenced appeals. Appellant’s brief was first due on July 6, 2016. On July 12, 2016, the Clerk of the Court notified appellant that the brief had not yet been filed and required a response within 10 days. See TEX. R. APP. P. 38.8(b)(2). No response to this notice was received and no brief has been filed. Pursuant to Rule of Appellate Procedure 38.8, we must abate these appeals and remand the cases to the trial court for a hearing. See TEX. R. APP. P. 38.8(b)(2)–(3). We direct the trial court to conduct a hearing at which a representative of the Harris County District Attorney’s Office, appointed counsel Schindler, and appellant shall be present.1 The trial court shall have a court reporter record the hearing. The trial court is directed to make appropriate findings on these issues: (1) whether appellant wishes to prosecute this appeasl; and, if so, (2) whether appointed counsel Schindler has abandoned the appeals by failing to timely file briefs on appellant’s behalf; (3) and, if so, whether appellant is presently (a) indigent, in which case the trial court should appoint new appellate counsel at no expense to appellant and establish a date by which counsel will file a brief, no later than 30 days from the appointment; or 1 If appellant is incarcerated, at the trial court’s discretion, appellant may participate in the hearing by closed-circuit video teleconferencing. Any such teleconference must use a closed-circuit video teleconferencing system that provides for a simultaneous compressed full motion video and interactive communication of image and sound between the trial court, appellant, and any attorneys representing the State or appellant. On request of appellant, appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the attorney representing the State. (b) not indigent, in which case the trial court should establish a date by which appellant shall retain new counsel; (4) or, if appointed counsel Schindler has not abandoned the appeals, make appropriate findings and recommendations regarding the reason that counsel has failed to file a brief and establish a date by which counsel will file appellant’s brief, no later than 30 days from the date of the hearing. TEX. CODE CRIM. PROC. ANN. arts. 1.051(d), 26.04; TEX. R. APP. P. 38.8(b)(2), (3), (4). The trial court shall cause a supplemental clerk’s record containing its findings and recommendations, including the name, address, telephone number, and State Bar number of any substitute counsel, and the reporter’s record of the hearing to be filed in this Court no later than August 31, 2016. If the hearing is conducted by video teleconference, a certified video recording of the hearing shall be filed in this Court no later than August 31, 2016. The appeals are abated, treated as closed case,s and removed from this Court’s active docket. The appeals will be reinstated on this Court’s active docket when a supplemental clerk’s record that complies with this order, and the reporter’s record of the hearing, have been filed in this Court. The trial court coordinator shall set a hearing date and notify the parties and the Clerk of this Court of such date. It is so ORDERED. Judge’s signature: /s/ Rebeca Huddle  Acting individually Date: August 16, 2016