Josie L. Alaniz v. State

Fourth Court of Appeals
San Antonio, Texas
February 22, 2019
No. 04-18-00284-CR
Josie L. ALANIZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2010CR1192
Honorable Catherine Torres-Stahl, Judge Presiding
ORDER
Appellant’s brief was due January 14, 2019, but was not filed. This court notified
appellant’s appointed counsel, Todd McCray, of the deficiency on January 25, 2019. See TEX.
R. APP. P. 38.8(b)(2). On February 12, 2019, counsel filed a motion for voluntary dismissal,
stating appellant no longer desires to pursue her appeal. The motion, however, contains only
counsel’s signature and does not contain a signature from appellant. See id. R. 42.2(a)
(providing voluntary motions to dismiss in criminal cases must be signed by both appellant and
his or her attorney). In lieu of appellant’s signature, counsel attached an affidavit, attesting
appellant informed him by telephone that she no longer wishes to pursue the appeal and wants to
file a motion to dismiss; however, he has been unable to obtain appellant’s signature on the
motion to dismiss because appellant has missed three office appointment and does not accept his
phone calls.
After consideration of the above, we ORDER this appeal ABATED and REMANDED
to the trial court. See id. R. 38.8(b)(3). We ORDER the trial court to conduct a hearing within
fifteen days of the date of this order to determine whether appellant desires to pursue her appeal.
See id. The trial court may, in its discretion, receive evidence on the issue by sworn affidavit
from the appellant. The trial court shall, however, order appellant’s counsel to be present at the
hearing.
We further ORDER the trial court to make written findings and conclusions on these
issues. See id.. Additionally, we ORDER the clerk to file in this court, no later than March 25,
2019, a supplemental clerk’s record containing the trial court’s written findings of fact,
conclusions of law, and recommendations addressing whether appellant desires to pursue her
appeal. See id.
We order the clerk of this court to serve a copy of this order on the trial court, all
counsel, the district clerk, and the court reporter.
_________________________________
Beth Watkins, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 22nd day of February, 2019.
___________________________________
KEITH E. HOTTLE,
Clerk of Court