Joe Louis Tienda v. State ( 2013 )

Order filed June 27, 2013 In The Eleventh Court of Appeals __________ No. 11-11-00283-CR __________ JOE LOUIS TIENDA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 428th District Court Hays County, Texas Trial Court Cause No. 07-802 ORDER This appeal has been unduly stalled due to the failure of Appellant’s appointed counsel, Michael Packard, to file an appellate brief. The brief was originally due on November 19, 2012. On December 19, the court on its own motion granted an extension until January 3, 2013. On May 9, 2013, after four months had passed with no communication from Packard, this court issued an order directing Packard to file in this court a brief on behalf of Appellant on or before May 24, 2013. Instead, on May 24, 2013, Packard filed a motion for extension of time to file Appellant’s brief in which counsel questioned his competency to represent Appellant due to a change in counsel’s practice area and a language barrier. We overruled the motion for extension of time filed by Packard. On June 17, 2013, this court received from E. Chevo Pastrano a motion to extend the time to file Appellant’s brief. In the motion, Pastrano asserts that he was appointed by the trial court on June 6, 2013, to represent Appellant. Attached to Pastrano’s motion are copies of the following documents: Packard’s June 5, 2013 motion to withdraw as counsel; an order signed by the trial court on June 6, 2013, granting Packard’s motion to withdraw; and an order signed by the trial court on June 7, 2013, appointing Pastrano to represent Appellant in this appeal. We note that Packard did not file in this court a motion to withdraw. See TEX. R. APP. P. 6.5. Pursuant to TEX. R. APP. P. 25.2(g), when the record is filed in an appellate court, “all further proceedings in the trial court—except as provided otherwise by law or by these rules—will be suspended” until the appellate court’s mandate is received. In light of the circumstances surrounding this appeal, including Packard’s desire to withdraw, his asserted lack of competency, and the trial court’s entry of two orders after the record was filed in this case when it had no jurisdiction to do so, we abate the appeal. We abate the appeal and remand the cause to the trial court so that it may, in proper format, determine the following: 1. Whether Tienda desires to prosecute his appeal; 2. Whether Tienda is indigent; and 3. If indigent, whether appointed counsel, Michael Packard, should be removed as appellate counsel and new counsel appointed. 2 See TEX. R. APP. P. 38.8(b). The trial court is directed to make appropriate findings and recommendations and to appoint new appellate counsel, such as Pastrano, if appropriate. The trial court clerk is directed to prepare and forward to this court a supplemental clerk’s record containing the findings, recommendations, and any orders of the trial court. If a hearing is held, the court reporter is directed to prepare and forward to this court the reporter’s record from the hearing. These records are due to be filed in this court on or before July 29, 2013. Appellant’s brief will be due to be filed in this court within thirty days after the date this appeal is reinstated. The appeal is abated. PER CURIAM June 27, 2013 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Willson, J. 3