Frank Paul Celaya v. State

• Court: Court of Appeals of Texas
• Decided: January 9, 2019
• Docket: 05-18-00391-CR
• Status: Published

Opinion

Order entered January 9, 2019

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00391-CR

FRANK PAUL CELAYA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F12-52876-U

ORDER We REINSTATE this appeal.

Appellant’s brief, due August 24, 2018, has not been filed. We notified appellant by

postcard dated August 28th that the brief was overdue. On September 7, 2018, appellate counsel

filed a letter, notifying the Court that: (1) she has been unable to reach appellant; (2) on June 7,

2018, the trial court granted appellant’s motion for shock probation; and (3) appellant’s trial

court counsel informed appellate counsel that it was likely appellant no longer wished to pursue

the appeal because appellant wanted shock probation. Although we ordered the trial court to

conduct a hearing, we have not received any findings or record, nor have we heard from

appellate counsel. Under the rules of appellate procedure, this Court may dismiss an appeal when a motion

to dismiss, signed by both appellant and his attorney, has been filed. See TEX. R. APP. P. 42.2(a).

Absent such a motion, the appeal may not be voluntarily dismissed. The rules also provide that

if appellate counsel fails to file a brief, the Court “must order the trial court to immediately

conduct a hearing to determine whether the appellant desires to prosecute his appeal.” See TEX.

R. APP. P. 38.8(b)(2), (3). When this occurs, the trial court “must conduct any necessary

hearings, make appropriate findings and recommendations, and have a record of the proceedings

prepared” and that record must be sent to the appellate court. See TEX. R. APP. P. 38.8(b)(3).

In this appeal, counsel states she is unable to locate her client and it is “likely” appellant

no longer wishes to pursue an appeal; counsel does not state what methods she has used to locate

her client, including whether she has contacted appellant’s probation officer. To date, no brief or

properly signed motion to dismiss has been filed.

We again ORDER the trial court to conduct a hearing to determine: (1) whether

appellant desires to prosecute this appeal, (2) whether appellant has abandoned the appeal, and

(3) what efforts trial counsel has taken to locate and communicate with appellant. See TEX. R.

APP. P. 38.8(b). If the trial court cannot obtain appellant’s presence at the hearing, the trial court

shall conduct the hearing in appellant’s absence. See Meza v. State, 742 S.W.2d 708 (Tex. App.–

Corpus Christi 1987, no pet.) (per curiam). If appellant is indigent and does desire to prosecute

the appeal, the trial court is ORDERED to take such measures as may be necessary to assure

effective representation, which may include appointment of new counsel.

We ORDER the trial court to transmit a record of the proceedings, which shall include

written findings and recommendations, to this Court within TWENTY DAYS of the date of this

order. We DIRECT the Clerk to send a copy of this order, BY CERTIFIED MAIL RETURN

RECEIPT REQUESTED, to the Honorable Stephanie Mitchell, Presiding Judge, 291st Judicial

District Court and to Tara Cunningham. In addition, we DIRECT the Clerk to send a copy of

this order by electronic mail to the Dallas County District Attorney’s Office.

This appeal is ABATED to allow the trial court to comply with the above order. The

appeal shall be reinstated twenty days from the date of this order or when the findings are

received, whichever is earlier.

/s/ ROBERT D. BURNS, III CHIEF JUSTICE