Silverio Hernandez, Jr. v. State

Opinion

NO. 07-11-0240-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JANUARY 12, 2012

______________________________

SILVERIO HERNANDEZ, JR., APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;

NO. 2674; HONORABLE GORDON H. GREEN, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND

Following a plea of not guilty, Appellant, Silverio Hernandez, Jr., was convicted

by a jury of aggravated assault with an affirmative finding on use of a deadly weapon.

Punishment was assessed by the jury at ten years confinement and a $5,000 fine. Both

the clerk's record and reporter's record have been filed. Appellant's brief was due to be

filed on October 12, 2011. After an extension of time in which to file the brief was

granted to November 2, 2011, the brief was not filed. By letter dated November 9, 2011, appointed counsel was advised that the brief remained outstanding and he was

granted until November 21, 2011, in which to file the brief, noting that failure to comply

might result in abatement of the appeal and remand of the cause to the trial court for

further proceedings. Counsel has not communicated with the Clerk of this Court

regarding this appeal and Appellant's brief is still due.

Consequently, we now abate this appeal and remand the cause to the trial court

for further proceedings. Upon remand, the trial court shall immediately determine why

counsel has failed to file Appellant=s brief and take such action as is necessary to

ensure that the brief is filed in accordance with this opinion.

Should counsel file Appellant's brief on or before, January 23, 2012, he is

directed to immediately notify the trial court, in writing, of the filing, whereupon the trial

court shall not be required to take further action. If, however, the brief is not filed by that

date, pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure, the

trial court is directed to conduct a hearing to determine the following:

1. whether Appellant desires to prosecute the appeal;

2. whether Appellant remains indigent and is entitled to appointed counsel; and 3. whether Appellant has been denied effective assistance of counsel and is entitled to new appointed counsel.

See Guillory v. State, 557 S.W.2d 118, 121 (Tex.Crim.App. 1977).1

1 The trial court has a duty under the Texas and federal Constitutions to provide an indigent defendant with the effective assistance of counsel on appeal. Guillory, 557 S.W.2d at 120 (citing Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)). Effective assistance cannot be afforded without requiring that counsel file a brief on an appellant's behalf. Id. at 121. The trial judge has the authority to require appointed counsel to file a brief on appellant's behalf. Id.

2 Should it be determined that Appellant does want to continue the appeal and the

trial court determines he is entitled to new appointed counsel, the name, address,

telephone number, and state bar number of the newly-appointed counsel shall be

provided to the Clerk of this Court. The trial court shall execute findings of fact and

conclusions of law, and shall cause its findings, conclusions, and any necessary orders

to be included in a supplemental clerk's record to be filed with the Clerk of this Court by

February 13, 2012. If new counsel is appointed, Appellant's brief shall be due thirty

days after the date of appointment; however, should James B. Johnston be allowed to

remain as appointed counsel, he is hereby ordered to file Appellant's brief on or before

February 6, 2012.

It is so ordered.

Per Curiam

Do not publish.