Nicholas Puente v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 5, 2022
• Docket: 04-21-00423-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas January 5, 2022

No. 04-21-00423-CR

Nicholas PUENTE, Appellant

v.

The STATE of Texas, Appellee

From the 81st Judicial District Court, Wilson County, Texas Trial Court No. CRW2008215 Honorable Russell Wilson, Judge Presiding

ORDER

Appellant’s brief was originally due by November 29, 2021 and was not filed. We notified appellant’s counsel of the deficiency on December 3, 2021. See TEX. R. APP. P. 38.8(b)(2). In that notice, we cautioned appellant that if we did not receive an adequate response by December 13, 2021, we would abate this appeal to the trial court for an abandonment hearing. See id. Neither the brief nor a motion for extension of time to file the brief has been filed. On December 28, 2021, however, appointed counsel for Appellant, Kyle J. Ernst, e-mailed the Clerk of our Court explaining that he will file a motion to withdraw.

Pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we ORDER this appeal ABATED and ORDER the trial court to conduct a hearing to answer the following questions:

(1) Does appellant desire to prosecute his appeal?

(2) Is appellant indigent? If appellant is indigent, the trial court shall take such measures as may be necessary to assure the effective assistance of counsel, which may include the appointment of new counsel.

(3) Has appointed or retained counsel abandoned the appeal? Because sanctions may be necessary, the trial court should address this issue even if new counsel is retained or substituted before the date of the hearing. The trial court may, in its discretion, receive evidence on the first two questions by sworn affidavit from appellant. The trial court shall, however, order appellant’s counsel to be present at the hearing.

We further ORDER the district clerk and court reporter to file a supplemental clerk’s and reporter’s records in this court by February 4, 2022, which shall include: (1) a transcription of the hearing and copies of any documentary evidence admitted; (2) written findings of fact and conclusions of law; and (3) recommendations addressing the above enumerated questions.

_________________________________ Beth Watkins, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 5th day of January, 2022.

___________________________________ Michael A. Cruz, Clerk of Court