Santiago Gomez IV v. State

Opinion

NO. 07-09-0042-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JULY 31, 2009 ______________________________

SANTIAGO MASON GOMEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

NO. A17779-0809; HONORABLE ROBERT W. KINKAID, JR., JUDGE _______________________________

Before CAMPBELL and HANCOCK, JJ., and BOYD, S.J.1

ON ABATEMENT AND REMAND

Appellant, Santiago Mason Gomez, appeals from a trial court judgment pronounced

on January 13, 2009, and filed notice of appeal on January 14. The appellate record was

due by March 16, 2009. TEX . R. APP. P. 35.2(b). The court clerk filed the clerk’s record on

March 6. The court reporter has requested three previous extensions of time to file the

reporter’s record on April 13, May 15, and June 29, all of which were granted. The court

reporter’s monthly report on June 29 indicated that the court reporter has recently

1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. completed the reporter’s record in another case consisting of more than 5,000 pages.

Further, the report indicated a possible trial week for July 20-24. On the current monthly

report, the court reporter indicates five pending appellate cases, with an estimated total

page count of over 2,000 pages, all of the cases with record due dates in August.

Furthermore, the report indicates a travel week on August 3-7, jury weeks on August 10-20,

and another travel week on August 23-27. We note that the 64th Judicial District covers

Hale, Swisher, and Castro counties. Although the court reporter has answered all of our

inquiries and has diligently notified this court of her workload, this court has a responsibility

to ensure the timely filing of the appellate record. See TEX . R. APP. R. 35.3(c).

Accordingly, we abate this appeal and remand the cause to the trial court for further

proceedings. See TEX . R. APP. P. 35.3(c). Upon remand, the trial court shall immediately

cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the

following:

1. whether the reporter’s record can reasonably be filed in a manner that does not further delay this appeal or have the practical effect of depriving appellant of the right to appeal, and

2. whether an alternate or substitute reporter should or can be appointed to complete the record in a timely manner.

The trial court shall cause the hearing to be transcribed. In addition, the trial court

shall (1) execute findings of fact and conclusions of law addressing the foregoing issues,

(2) cause a supplemental clerk’s record to be developed containing its findings of fact and

conclusions of law and all orders it may issue as a result of its hearing in this matter, and

2 (3) cause a reporter’s record to be developed transcribing the evidence and arguments

presented at the aforementioned hearing, if any. The trial court shall then file the

supplemental clerk’s record and any reporter’s record transcribing the hearing with the

clerk of this court on or before August 21, 2009. Should further time be needed by the trial

court to perform these tasks, then same must be requested before August 21, 2009.

It is so ordered.

Per Curiam

Do not publish.