Hipolito Alvarez v. State

• Court: Court of Appeals of Texas
• Decided: August 16, 2011
• Docket: 07-11-00129-CR
• Status: Published

Opinion

NO. 07-11-0129-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 16, 2011 ______________________________

HIPOLITO ALVAREZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee _______________________________

FROM THE 181st DISTRICT COURT OF POTTER COUNTY;

NO. 58,169-B; HON. JOHN BOARD, PRESIDING _______________________________

ABATEMENT AND REMAND _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Hipolito Alvarez, appellant, appeals his conviction for sexual abuse of a child.

Appellant timely perfected his appeal. The clerk’s record was filed on May 10, 2011, and

the reporter’s record on June 24, 2011. Appellant’s brief was due on July 25, 2011.

The brief was not filed by that date and on August 2, 2011, the court notified counsel

that she had until August 12, 2011, to either file appellant’s brief or file an extension

motion. To date, neither a brief nor an extension motion has been received by the

court. Those convicted of criminal acts are entitled to effective assistance of counsel on

appeal. The failure of counsel to timely prosecute an appeal falls short of rendering

such assistance. Consequently, we abate the appeal and remand the cause to the

181st District Court of Potter County (trial court) for further proceedings. Upon remand,

the trial court shall immediately cause notice of a hearing to be given and, thereafter,

conduct a hearing to determine 1) whether appellant desires to prosecute this appeal, 2)

whether appellant is indigent and entitled to appointed counsel, and 3) whether

appellant’s current attorney was appointed or retained. The trial court is ordered to

execute pertinent findings of fact on these matters. Should it be found that appellant

desires to pursue the appeal, is indigent, and his current legal counsel was appointed,

then the trial court is ordered to remove appellant’s current legal counsel and appoint

another to zealously represent appellant’s interest on appeal. The name, address,

phone number, telefax number, and state bar number of the new attorney must also be

included in the court's findings of fact and conclusions of law. Lastly, the trial court shall

also cause to be developed 1) a supplemental clerk's record containing the findings of

fact and conclusions of law and 2) a reporter's record transcribing the evidence and

argument presented at the aforementioned hearing. The foregoing supplemental clerk's

and reporter’s records must be filed by the trial court with the clerk of this court on or

before September 15, 2011. Should additional time be needed to perform these tasks,

the trial court may request same on or before September 15, 2011.

It is so ordered.

Per Curiam Do not publish. 2