Ruben Alejandro Garcia v. State

• Court: Court of Appeals of Texas
• Decided: August 2, 2017
• Docket: 05-16-01415-CR
• Status: Published

Opinion

Order entered August 2, 2017

In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-01415-CR

RUBEN ALEJANDRO GARCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court of Appeals No. 2 Dallas County, Texas Trial Court Cause No. MB14-63674-M

ORDER On March 23, 2017, we ordered appellate counsel Rosalind Kelly to provide written

verification that she had contacted court reporter Holly Swinford, requested the reporter’s record,

and either paid for or made arrangements to pay for the reporter’s record. We cautioned Ms.

Kelly that the failure to do so would result in the appeal being submitted without a reporter’s

record. When Ms. Kelly did not respond or otherwise communicate with the Court, we ordered

the appeal submitted without a reporter’s record and appellant’s brief due on May 26, 2017.

By postcard dated May 30, 2017, we notified Ms. Kelly that the brief was past due and

directed her to file appellant’s brief and an extension motion within ten days. To date, the brief

has not been filed, and we have had no communication from Ms. Kelly. We therefore ORDER the trial court to conduct a hearing to determine why appellant’s

brief has not been filed. In this regard, the trial court shall make appropriate findings and

recommendations and determine whether appellant desires to prosecute the appeal, whether

appellant is indigent, or if not indigent, whether retained counsel has abandoned the appeal. See

TEX. R. APP. P. 38.8(b). If the trial court cannot obtain appellant’s presence at the hearing, the

trial court shall conduct the hearing in appellant’s absence. See Meza v. State, 742 S.W.2d 708

(Tex. App.–Corpus Christi 1987, no pet.) (per curiam). If appellant is indigent, the trial court is

ORDERED to take such measures as may be necessary to assure effective representation, which

may include appointment of new counsel.

We ORDER the trial court to transmit a record of the proceedings, which shall include

written findings and recommendations, to this Court within THIRTY DAYS of the date of this

order. Once the findings and recommendations have been filed, the Court will take whatever

action it deems appropriate to ensure appellant’s rights are protected, which may include

initiating contempt proceedings against counsel or filing a grievance and referring this matter to

the State Bar of Texas Commission for Lawyer Discipline for further proceedings.

We DIRECT the Clerk to send copies of this order to the Honorable Jeffrey Rosenfield,

Presiding Judge, County Criminal Court of Appeal No. 2; to Rosalind Kelly; and to the Dallas

County District Attorney’s Office.

This appeal is ABATED to allow the trial court to comply with the above order. The

appeal shall be reinstated thirty days from the date of this order or when the findings are

received, whichever is earlier.

/s/ ADA BROWN JUSTICE