Elias Gaitan A/K/A Elias Gaitan Jr. v. State

• Court: Court of Appeals of Texas
• Decided: February 12, 2015
• Docket: 13-14-00661-CR
• Status: Published

Opinion

NUMBER 13-14-00661-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ELIAS GAITAN, Appellant,

V.

THE STATE OF TEXAS, Appellee.

On appeal from the 357th District Court of Cameron County, Texas.

ORDER ABATING APPEAL Before Chief Justice Valdez and Justices Rodriguez and Garza Order Per Curiam

This cause is before the Court regarding the appellant’s failure to file a designation

and make arrangements for preparation of the clerk’s record. On January 5, 2015, the

Clerk of this Court notified appellant that the clerk’s record was originally due on January

5, 2015, and that the deputy district clerk, Yvonne Calzada, had notified this Court that

appellant failed to file a designation and make payment arrangements for preparation of the clerk’s record. Appellant was advised that, if the defect was not corrected within ten

days from the date of receipt of the notice, the matter would be referred to the Court for

appropriate action. See TEX. R. APP. P. 37.3(a)(2). Appellant failed to respond to the

Court’s notice.

On January 8, 2015, the Clerk of this Court notified appellant that the reporter’s

record was due on January 5, 2015, and that the court reporter, Cynthia L. Garza, had

notified this Court that appellant had failed to request the reporter’s record and make

arrangements for payment of the reporter’s record.

This sequence of events requires us to effectuate our responsibility to avoid further

delay and to preserve the parties' rights. See id. Accordingly, this appeal is ABATED

and the cause REMANDED to the trial court.

Upon remand, the trial court shall utilize whatever means necessary to make

appropriate findings and recommendations concerning the following: (1) whether

appellant has abandoned his appeal; (2) whether his present attorney will diligently

pursue the appeal; (3) if it be determined that the present attorney will not diligently pursue

the appeal, whether appellant is indigent, and if so, whether other counsel should be

appointed to represent him; (4) if appellant is not indigent and the present attorney will

not diligently pursue the appeal, what steps need to be taken to ensure that appellant will

promptly obtain the services of another attorney to pursue the appeal; and (5) if any other

orders are necessary to ensure the proper and timely pursuit of appellant’s appeal. If

new counsel is appointed, the name, address, telephone number, and state bar number

of said counsel shall be included in an order appointing counsel.

2 The trial court shall cause its findings and recommendations, together with any

orders it may enter regarding the aforementioned issues, to be included in a supplemental

clerk's record. Furthermore, the trial court shall cause a supplemental reporter's record

of any proceedings to be prepared. The supplemental clerk's record and supplemental

reporter's record, if any, shall be filed with the Clerk of this Court within thirty days from

the date of this order.

IT IS SO ORDERED.

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 12th day of February, 2015.