Fredys Olifier Rios-Barahona v. State

• Court: Court of Appeals of Texas
• Decided: June 12, 2018
• Docket: 13-17-00567-CR
• Status: Published

Opinion

NUMBER 13-17-00567-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FREDYS OLIFIER RIOS-BARAHONA, APPELLANT,

v.

THE STATE OF TEXAS, APPELLEE.

On appeal from the 207th District Court of Comal County, Texas.

ORDER OF ABATEMENT Before Chief Justice Valdez and Justices Benavides and Longoria Order Per Curiam

Appellant’s brief was originally due on January 3, 2018.1 On January 5, 2018, the

Clerk of the Court notified appellant’s counsel that the brief had not been timely filed,

1 This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to a

docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2017 R.S.). requested counsel to file a response concerning the failure to file the brief within ten days,

and warned counsel that the Court would abate and remand this cause to the trial court

for appropriate findings if a response was not filed. Appellant failed to file a motion or

otherwise respond within the requisite period of time.

Accordingly, on January 29, 2018, the Court abated and remanded the matter to

the trial court, in accordance with Rule 38.8(b)(2) of the Texas Rules of Appellate

Procedure, to allow the trial court to conduct a hearing to determine whether appellant

desired to prosecute his appeal, whether the appellant was indigent, or if not indigent,

whether retained counsel had abandoned the appeal, and to make appropriate findings

and recommendations. If the appellant was indigent, we directed the trial court to take

such measures as were necessary to assure effective representation of counsel.

The Court received a supplemental clerk’s record on March 12, 2018, containing

the trial court’s findings that appellant desires to prosecute the appeal, counsel has not

abandoned the appeal, and appellant has not been denied effective assistance of counsel

and thus should not be removed from this appeal. Accordingly, on March 13, 2018, we

notified the parties that the appeal was reinstated and that appellant’s brief was due to be

filed by April 12, 2018. On April 17, 2018, counsel filed a motion for extension of time to

file the brief until May 4, 2018 which was granted by the Court.

On May 7, 2018, the Clerk of the Court notified appellant’s counsel that the brief

had not been timely filed, requested counsel to file a response concerning the failure to

file the brief within ten days, and warned counsel that the Court would abate and remand

2 this cause to the trial court for appropriate findings if a response was not filed. As of this

date, counsel has not responded or filed a brief.

We have already abated this matter once because of the tardiness of appellant’s

brief. See TEX. R. APP. P. 38.8(b)(2). Appellant is entitled to effective assistance of

counsel. We have a duty to ensure that appellant’s rights are protected. Accordingly,

we ABATE and REMAND this matter to the trial court with instructions to remove Joseph

E. Garcia III as counsel for appellant and appoint new appellate counsel in his place.

The name, address, email address, telephone number, and state bar number of newly

appointed counsel shall be included in the order of appointment. The trial court shall

cause its order to be included in a supplemental clerk's record to be filed with the Clerk

of this Court on or before the expiration of thirty days from the date of this order.

Appellant’s brief will be due within thirty days of the date that appellant’s new

counsel is appointed.

It is so ORDERED.

PER CURIAM

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

Delivered and filed the 12th day of June, 2018.