Rodolfo Delgado Jr. v. State

• Court: Court of Appeals of Texas
• Decided: January 19, 2015
• Docket: 13-14-00074-CR
• Status: Published

Opinion

NUMBER 13-14-00074-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RODOLFO DELGADO JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 103rd District Court of Cameron County, Texas.

ORDER ABATING APPEAL Before Chief Justice Valdez and Justices Rodriguez and Garza Order Per Curiam

Appellant’s brief was originally due to be filed on June 9, 2014. This Court has

previously granted two motions for extension of time to file appellant’s brief in this case.

On October 2, 2014, the Clerk of the Court notified appellant’s counsel that the brief had

not been filed and requested a response concerning the failure to file the brief within ten days. Counsel failed to respond or file a brief and this Court abated the appeal and

remanded the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(2)

and (3) of the Texas Rules of Appellate Procedure.

On October 29, 2014, the trial court held a hearing and made findings that

appellant intends to prosecute his appeal and that counsel has medical issues and

requests additional time to finish the brief. The trial court recommended that appellant

be allowed to continue his appeal with his current attorney of record, the Honorable

Rebecca Rubane, and that she be given an extension of 45 days to file the brief.

On December 1, 2014, this Court ordered counsel to file the brief on or before

January 5, 2015, informing counsel that no further extensions would granted and failure

to file the brief would result in abatement to the trial court for appointment of new counsel.

Nevertheless, counsel failed to file the brief.

Appellant is entitled to effective assistance of counsel. We have a duty to ensure

that appellant’s rights are protected. Accordingly, we ABATE and REMAND this matter

to the trial court with instructions to remove Rebecca Rubane as counsel for appellant

and appoint new appellate counsel in her place. The name, address, telephone number,

email address and state bar number of the newly appointed counsel shall be included in

the order of appointment. The trial court shall cause its order to be included in a

supplemental clerk's record to be filed with the Clerk of this Court on or before the

expiration of thirty days from the date of this order.

Appellant’s brief will be due within thirty days of the date that appellant’s new

counsel is appointed. The Court will not entertain an extension of time to file the brief in

2 this matter.

It is so ORDERED.

PER CURIAM

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

Delivered and filed the 16th day of January, 2015.