Gerardo Corral, A/K/A Rodney Serna, A/K/A Alfred Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: January 31, 2012
• Docket: 07-11-00053-CR
• Status: Published

Opinion

NO. 07-11-00053-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 31, 2012

GERALDO CORRAL, A/K/A RODNEY SERNA, A/K/A ALFRED HERNANDEZ, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 69TH DISTRICT COURT OF SHERMAN COUNTY;

NO. 878; HONORABLE RON ENNS, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER OF ABATEMENT AND REMAND

Appellant Geraldo Corral filed notice of appeal from his conviction and sentence

for two counts of aggravated sexual assault of a child and two counts of indecency with

a child.

By order of September 19, 2011, the appeal was remanded to the trial court for a

hearing to determine if appellant was indigent and entitled to appointed counsel on

appeal. At the hearing, appellant indicated he desired to prosecute the appeal, that he

lacked funds to retain an attorney, and that his mother was attempting to hire an attorney to represent him. Appellant refused the offer of the trial court for appointed

appellate counsel.

Appellant’s brief was then due on October 24, 2011. By letters dated October 11

and October 19, appellant requested additional time to locate an attorney. We

extended the deadline for filing appellant’s brief until November 25. When appellant did

not file his brief we further extended the due date until January 16, 2012. In so doing,

we admonished appellant that if we did not receive a brief or other communication from

an attorney representing him by that date, we would again abate the appeal and

remand the case for the trial court to again consider the appointment of appellate

counsel.

The deadline has passed, even allowing for filing by mail. Tex. R. App. P.

9.2(b)(1). But neither appellant nor an attorney representing him has responded to our

order. Appellant’s failure to take action may indicate a lack of interest in prosecuting the

appeal, or may be caused by other factors. But this is a determination for the trial court.

We abate the appeal and remand the cause to the 69th District Court of Sherman

County for further proceedings. Tex. R. App. P. 38.8(b)(2). On remand, the trial court

shall use whatever means it finds necessary, which may include noticing and

conducting a hearing, to determine 1) whether appellant, in fact, desires to prosecute

this appeal; 2) whether appellant is indigent and entitled to appointed counsel; and 3) if

appellant is not indigent, why counsel has not been retained. The trial court shall issue

findings and recommendations on these matters. Tex. R. App. P. 38.8(b)(3).

2 If the trial court finds appellant desires to pursue the appeal and is indigent, the

court shall appoint counsel to represent appellant’s interest on appeal. In that event,

the court shall cause the name, address, telephone number, fax number, and state bar

number of the appointed attorney to be provided to this court.

The trial court shall also cause to be developed 1) a supplemental clerk’s record

containing the findings and recommendations and 2) a reporter’s record transcribing the

evidence and argument presented at any hearing held. The supplemental clerk’s record

and reporter’s record, if any, shall be filed by the trial court with the clerk of this court on

or before February 22, 2012. Should additional time be needed to perform these tasks,

the trial court may request same on or before that date.

Finally, if the trial court finds appellant no longer desires to prosecute his appeal

or is not indigent but has not made the necessary arrangements for filing a brief, we

may take such actions as justice may require, which may include considering the appeal

without a brief. Tex. R. App. P. 38.8(b)(4).

It is so ordered.

Per Curiam

Do not publish.