Jesus Angel Rebollar v. State

Opinion

NUMBER 13-19-00590-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JESUS ANGEL REBOLLAR, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 139th District Court of Hidalgo County, Texas.

ORDER OF ABATEMENT Before Chief Justice Contreras and Justices Longoria and Tijerina Order Per Curiam

This appeal is before the court on appellant’s unopposed motion for order of

abatement. Appellant filed this motion after we granted three extensions of the time to file

a brief; furthermore, on March 5, 2021, we ordered the Honorable Traci Evans to file

appellant’s brief on or before March 15, 2021. On March 16, 2021, the clerk of the court

sent notice to appellant that the brief was past due; the notice indicates that if appellant’s counsel fails to file a satisfactory response to the notice, the matter will be referred to the

trial court. On March 22, 2021, appellant’s counsel filed the motion now before the court.

Appellant’s motion asserts portions of the reporter’s record are either incomplete or

missing, but it neither addresses the cause of the delay in filing a brief nor clearly identifies

with any specificity what hearings or other items are missing from the reporter’s record.

The Court looks with disfavor upon the delay cause by appellant’s counsel’s failure

to address the past due brief as well as her failure to address the purported missing

portions of the record in her earlier motions.

Accordingly, appellant’s motion is GRANTED; this matter is hereby ABATED, and

the cause REMANDED to the trial court for further proceedings to address appellant’s

counsel’s failure to file the brief and to identify items, if any, missing from the reporter’s

record.

First, the trial court is ORDERED to hold further proceedings, pursuant to Rule

38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure. The trial court shall utilize

whatever means necessary to make appropriate findings and recommendations

concerning the following:

(1) whether appellant desires to prosecute this appeal;

(2) why appellant's counsel has failed to file a brief and whether counsel has effectively abandoned the appeal;

(3) whether appellant has been denied effective assistance of counsel;

(4) whether appellant's counsel should be removed; and,

(5) whether appellant is indigent and entitled to new, court-appointed counsel.

If the trial court determines that appellant does want to continue the appeal, that present

2 counsel should be removed, and that appellant is indigent and entitled to new court-

appointed counsel, the trial court shall appoint new counsel to represent appellant in this

appeal. If new counsel is appointed, the name, address, telephone number, email

address, and state bar number of said counsel shall be included in an order appointing

counsel.

Second, in accordance with Texas Rule of Appellate Procedure 34.6(d), (e), and

(f), the trial court is directed to conduct a hearing to further determine:

(1) if the reporter or clerk has possession of exhibits which were omitted from the submitted record;

(2) if, without the appellant's fault, a significant exhibit has been lost and/or destroyed;

(3) if any lost and/or destroyed exhibits are necessary to the appeal's resolution; and,

(4) if the lost and/or destroyed exhibits cannot be replaced by agreement of the parties, or the lost and/or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit. See TEX. R. APP. P. 34.6(f).

The trial court is directed to forward the record of the proceedings, including any

orders and findings, to this Court within thirty (30) days of the date of this order, or to

notify this Court within such period indicating a date by which the trial court can comply.

IT IS SO ORDERED.

PER CURIAM

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

Delivered and filed the 29th day of March, 2021.