Rico Martinez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 29, 2022
• Docket: 07-22-00184-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00184-CR

RICO MARTINEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. DC-2022-CR-0082, Honorable Douglas H. Freitag, Presiding

December 29, 2022 ORDER OF ABATEMENT AND REMAND Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Appellant, Rico Martinez, appeals his conviction for injury to a child, elderly

individual, or disabled individual1 and sentence to forty years’ confinement. Appellant’s

brief was originally due November 16, 2022, but was not filed. By letter of November 23,

2022, we admonished Appellant’s counsel that failure to file a brief by December 5 would

result in the appeal being abated and the cause remanded to the trial court for further

1 See TEX. PENAL CODE ANN. § 22.04(e). proceedings. Appellant’s counsel has not filed a brief or had any further communication

with this Court to date.

We, therefore, abate the appeal and remand the cause to the trial court for further

proceedings. See TEX. R. APP. P. 38.8(b)(2), (3). Upon remand, the trial court shall

determine the following:

(1) whether Appellant still desires to prosecute the appeal;

(2) whether Appellant is indigent;

(3) why a timely appellate brief has not been filed on behalf of Appellant;

(4) whether Appellant’s counsel has abandoned the appeal;

(5) whether Appellant has been denied the effective assistance of counsel;

(6) whether new counsel should be appointed; and

(7) if appellant desires to continue the appeal, the date the Court may expect

Appellant’s brief to be filed.

The trial court is also directed to enter such orders necessary to address the

aforementioned questions. So too shall it include its findings on those matters in a

supplemental record and cause that record to be filed with this Court by January 30, 2023.

If it is determined that Appellant desires to proceed with the appeal, is indigent, and has

been denied the effective assistance of counsel, the trial court may appoint new counsel;

the name, address, email address, phone number, and state bar number of any newly

appointed counsel shall be included in the aforementioned findings.

Should counsel file a brief on or before January 13, 2023, she is directed to

immediately notify the trial court of the filing, in writing, whereupon the trial court shall not

be required to take any further action.

2 It is so ordered.

Per Curiam

Do not publish.