Rodolfo Martinez Salinas v. State

• Court: Court of Appeals of Texas
• Decided: February 23, 2015
• Docket: 04-14-00565-CR
• Status: Published

Opinion

The State

Fourth Court of Appeals San Antonio, Texas Friday, February 20, 2015

No. 04-14-00565-CR

Rodolfo Martinez SALINAS, Appellant

v.

The STATE of Texas, Appellee

From the 49th Judicial District Court, Webb County, Texas Trial Court No. 2009-CRP-000403-D1 Honorable Elma T. Salinas-Ender, Judge Presiding

ORDER Appellant’s brief, due November 30, 2014, has not been filed. On December 15, 2014, we notified appellant’s court-appointed counsel, Richard J. Gonzalez, of the deficiency. TEX. R. APP. P. 38.8(b)(2). We received no response.

On December 30, 2014, we abated this case to the trial court and ordered the trial court to conduct a hearing and file its findings of fact and conclusions of law with the trial court clerk no later than thirty days from the date of our order. Apparently, a hearing was not held in a timely manner and no findings of fact and conclusions of law have been filed. We, therefore, extend the time for the trial court to conduct a hearing and file findings of fact and conclusions of law.

We 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?

(a) 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. (b) If the trial court finds that appellant is not indigent, the trial court should determine whether appellant has made the necessary arrangements for filing a brief.

(3) Has counsel abandoned the appeal? Because initiating contempt proceedings against appellant’s counsel may be necessary, the trial court should address this issue even if new counsel is retained or substituted before the date of the hearing. See TEX. R. APP. P. 38.8 (b)(4).

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 ORDER the trial court to conduct the hearing and file its written findings of fact and conclusions of law with the trial court clerk no later than Friday, March 6, 2015. We ORDER the trial court clerk to file a supplemental clerk’s record in this court no later than five days after the trial court files its findings of facts and conclusions of law. We further ORDER the court reporter to file in this court a supplemental reporter’s record of the hearing, along with copies of any documentary evidence admitted, no later than seven days after the date of the hearing.

_________________________________ Karen Angelini, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 20th day of February, 2015.

___________________________________ Keith E. Hottle Clerk of Court