Mauricio Gomez v. State

• Court: Court of Appeals of Texas
• Decided: June 9, 2016
• Docket: 07-16-00156-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-16-00156-CR

MAURICIO GOMEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 367th District Court Denton County, Texas Trial Court No. F-2013-1236-E, Honorable Charles (Coby) Waddill, Presiding

June 9, 2016

ORDER OF ABATEMENT AND REMAND Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant Mauricio Gomez was convicted of the offense of driving while

intoxicated, third offense or more,1 and sentenced to nine years imprisonment.

Appellant’s retained counsel filed a notice of appeal from the trial court’s judgment.

The appellate record was due on April 26, 2016. The trial court clerk’s record

was filed by this deadline. However, the court reporter notified us on April 26 that

appellant had not requested preparation or made acceptable payment arrangements for 1 TEX. PENAL CODE ANN. § 49.09 (West Supp. 2015). the reporter’s record. See TEX. R. APP. P. 35.3(b)(2), (3). By letter dated April 27, 2016,

we granted an extension to May 26 to file the reporter’s record. We also directed

appellant to request preparation of the reporter’s record and make acceptable payment

arrangements by May 12. Failure to do so, we advised, could result in the appeal being

abated and the cause remanded to the trial court for further proceedings without further

notice. See TEX. R. APP. P. 37.3(a)(2). This deadline has passed and the court reporter

has notified us that appellant has neither requested nor made payment arrangements

for the reporter’s record. Appellant’s counsel did not make any response to the Court’s

letter.

Accordingly, we abate the appeal and remand the cause to the trial court for

further proceedings. TEX. R. APP. P. 37.3(a)(2). On remand, the trial court shall utilize

whatever means it finds necessary to determine the following:

(1) whether appellant desires to prosecute the appeal;

(2) whether retained counsel has abandoned the appeal;

(3) whether appellant is indigent;

(4) if appellant is indigent, whether new counsel should be appointed to represent appellant on appeal;

(5) whether appellant is entitled to have the reporter's record furnished without charge;

(6) if appellant is not entitled to have the reporter’s record furnished without charge, the date appellant will request preparation and make acceptable payment arrangements for the reporter’s record; and

(7) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal if appellant does not desire to prosecute this appeal, or, if appellant desires to prosecute the appeal, to assure that the reporter's record will be filed promptly and that the appeal will be diligently pursued.

2 We further direct the trial court to issue findings of fact and conclusions of law

addressing the foregoing subjects. Should the trial court determine appellant desires

new counsel and is entitled to same, the trial court shall appoint counsel and shall

include in its findings of fact the name, address, telephone number, email address, and

state bar number of the new counsel appointed. Additionally, 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 any hearing held. The trial court shall cause the supplemental

clerk's record and reporter’s record, if any, to be filed with the clerk of this Court on or

before July 11, 2016. Should additional time be needed to perform these tasks, the trial

court may request same on or before that date.

It is so ordered.

Per Curiam

Do not publish.