Adulfo Cortez v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00310-CR
ADULFO CORTEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2008-421,536, Honorable John J. "Trey" McClendon, Presiding
February 25, 2014
ORDER OF ABATEMENT AND REMAND
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant, Adulfo Cortez, filed notice of appeal from a judgment adjudicating him
guilty of the offense of aggravated assault with an affirmative finding of use or exhibition
of a deadly weapon, and sentence of seven years’ incarceration in the Institutional
Division of the Texas Department of Criminal Justice. The appellate court clerk
received and filed the trial court clerk’s record on December 19, 2013. The official court
reporter filed the reporter’s record with the appellate court clerk on December 9.
Consequently, appellant’s brief was due to be filed on or before January 21, 2014.1 See
TEX. R. APP. P. 38.6. On January 28, this Court sent appellant notice that his brief was
past due. In that letter, this Court informed appellant that, if he failed to file his brief by
February 10, the appeal would be abated and the cause remanded to the trial court
without further notice. To date, appellant has not filed his brief nor responded to our
January 28 correspondence.
Accordingly, we now abate this appeal and remand the cause to the trial court.
See TEX. R. APP. P. 38.8(b)(2). The clerk’s record reflects that the trial court has
appointed Kelly Clark to represent appellant on appeal. Upon remand, the judge of the
trial court is directed to immediately cause notice to be given of and to conduct a
hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if
appellant desires to prosecute this appeal, whether appellant is indigent; (3) whether
present counsel for appellant has abandoned the appeal; (4) if appellant desires to
prosecute this appeal and is indigent, whether appellant=s present counsel should be
replaced; and (5) what orders, if any, should be entered to assure the filing of
appropriate notices and documentation to dismiss appellant=s appeal if appellant does
not desire to prosecute this appeal or, if appellant desires to prosecute this appeal, to
assure that the appeal will be diligently pursued. If the trial court determines that the
present attorney for appellant should be replaced, the trial court should cause the Clerk
of this Court to be furnished the name, address, and State Bar of Texas identification
number of the newly-appointed or newly-retained attorney.
1
Thirty days from the date that the clerk’s record was filed would be January 18. However,
January 18, 2014, was a Saturday. Thus, the deadline for filing appellant’s brief would be extended to
Monday, January 20, 2014. See TEX. R. APP. P. 4.1(a). However, as January 20, 2014 was a legal
holiday, appellant’s brief was due to be filed on January 21, 2014. See id.
2
The trial court is directed to: (1) conduct any necessary hearings; (2) make and
file findings of fact, conclusions of law, and recommendations addressing the
determinations identified above and cause them to be included in a supplemental clerk=s
record; (3) cause the hearing proceedings to be transcribed and included in a
supplemental reporter=s record; (4) have a record of the proceedings made to the extent
any of the proceedings are not included in the supplemental clerk=s record or the
supplemental reporter=s record; and (5) cause the records of the proceedings to be sent
to this Court. See TEX. R. APP. P. 38.8(b)(3). In the absence of a request for extension
of time from the trial court, the supplemental clerk=s record, supplemental reporter=s
record, and any additional proceeding records, including any orders, findings,
conclusions, and recommendations, are to be sent so as to be received by the Clerk of
this Court not later than Thursday, March 27, 2014.
Per Curiam
Do not publish.
3