Shauna Denay Ripley v. State ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
October 8, 2015
No. 04-15-00294-CR
Shauna Denay RIPLEY,
Appellant
v.
The STATE of Texas,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR0670
Honorable Lori I. Valenzuela, Judge Presiding
ORDER
On September 23, 2015, we notified Appellant’s appointed counsel Deborah Stanton
Burke that Appellant’s brief has not been filed in this appeal. We ordered Appellant’s counsel to
file the brief or a motion to dismiss this appeal not later than October 5, 2015. We cautioned
Appellant’s counsel that if Appellant failed to respond within the time provided we would abate
this appeal to the trial court for an abandonment hearing at which the trial court would be asked
to determine whether attorney sanctions are appropriate. See TEX. GOV’T CODE ANN. § 21.002
(West 2004) (authorizing punishment up to “a fine of not more than $500 or confinement in the
county jail for not more than six months, or both such a fine and confinement in jail”); In re
Fisch, 95 S.W.3d 732, 732 (Tex. App.—Houston [1st Dist.] 2003, order) (per curiam) (issuing a
contempt order for attorney’s failure to file a brief as ordered). To date, we have received no
response to our September 23, 2015 order.
Therefore, we ABATE this appeal and REMAND the cause to the trial court. See TEX.
R. APP. P. 38.8(b); Samaniego v. State, 952 S.W.2d 50, 52–53 (Tex. App.—San Antonio 1997,
no pet.). We ORDER the trial court to conduct a hearing in compliance with Rule 38.8(b) to
answer the following questions:
(1) Does Appellant desire to prosecute her appeal?
(2) Is Appellant indigent? If Appellant is indigent, the trial court shall take such
measures as may be necessary to assure the effective assistance of counsel, which
may include the appointment of new counsel.
(3) Has appointed or retained counsel abandoned the appeal? Because sanctions may be
necessary, the trial court should address this issue even if new counsel is retained or
substituted before the date of the hearing. See TEX. R. APP. P. 38.8(b)(4).
The trial court may, in its discretion, receive evidence on the first two questions by sworn
affidavit from appellant. The trial court shall, however, order Appellant’s counsel to be present
at the hearing. See id. R. 38.8(b)(3).
The trial court is further ORDERED to file supplemental clerk’s and reporter’s records in
this court, not later than THIRTY DAYS from the date of this order, which shall include the
following: (1) a transcription of the hearing and copies of any documentary evidence admitted,
(2) written findings of fact and conclusions of law, and (3) recommendations addressing the
above enumerated questions. See id. This court will consider the supplemental records in its
determination whether to initiate contempt proceedings against Appellant’s counsel. See id. R.
38.8(b)(4); In re Fisch, 95 S.W.3d at 732; Samaniego v. State, 952 S.W.2d at 53.
All other appellate deadlines are SUSPENDED pending further order of this court.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 8th day of October, 2015.
___________________________________
Keith E. Hottle
Clerk of Court