Ervin Jose Osorio Miranda v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 12, 2024
• Docket: 07-23-00445-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00445-CR

ERVIN JOSE OSORIO MIRANDA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 64th District Court Castro County, Texas Trial Court No. A4209-2205, Honorable Danah L. Zirpoli, Presiding

January 12, 2024 ORDER OF ABATEMENT AND REMAND Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Ervin Jose Osorio Miranda, appeals his conviction for continuous sexual

abuse of a young child1 and sentence to thirty years of confinement. The clerk’s record

was originally due August 15, 2023, but was not filed.2 By letter of December 13, 2023,

1 See TEX. PENAL CODE ANN. § 21.02(b).

2 Appellant timely filed a notice of appeal with the trial court clerk on July 8, 2023. The notice of appeal was not forwarded to the Clerk of this Court, however, until December 4, 2023. See TEX. R. APP. P. 25.2(c)(1), (e). we notified the trial court clerk that the record was overdue and directed her to advise this

Court of the status of the record by December 27. To date, the clerk has neither filed the

record nor sought an extension of time to do so.

Accordingly, we abate the appeal and remand the cause to the trial court for further

proceedings. See TEX. R. APP. P. 35.3(c) (“The trial and appellate courts are jointly

responsible for ensuring that the appellate record is timely filed.”); 37.3(a)(2) (requiring

appellate courts to “make whatever order is appropriate to avoid further delay and to

preserve the parties’ rights” when the appellate record is not timely filed). On remand,

the trial court shall determine the following:

(1) what tasks remain to complete the filing of the clerk’s record;

(2) why the clerk has not completed the necessary tasks;

(3) what amount of time is reasonably necessary for the completion of those

tasks; and

(4) whether the clerk can complete the tasks within the time the trial court

finds reasonable.

The trial court is directed to enter such orders necessary to address the

aforementioned questions. So too shall it include its findings on those matters in a clerk’s

record and cause that record to be filed with this Court by February 12, 2024.

Should the clerk file the record on or before January 26, 2024, she is directed to

immediately notify the trial court of the filing, in writing, whereupon the trial court shall not

be required to take any further action. 2 It is so ordered.

Per Curiam

Do not publish.