Steven Dryzer v. Charles and Karen Bundren

• Court: Court of Appeals of Texas
• Decided: October 25, 2012
• Docket: 07-12-00167-CV
• Status: Published

Opinion

NO. 07-12-0210-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

OCTOBER 25, 2012

______________________________

ALVARADO SOCORRO GONZALEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;

NO. 4461; HONORABLE STUART MESSER, JUDGE

_______________________________

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

ABATEMENT AND REMAND

Pursuant to a guilty plea, on April 27, 2010, Appellant, Alvarado Socorro

Gonzalez, was granted deferred adjudication and placed on community supervision for

possession of heroin in an amount of 400 grams or more. 1 In 2012, the State filed a

motion to proceed for numerous violations of the terms and conditions of community

supervision, to which Appellant entered a plea of not true. Following a hearing, the trial

1 TEX. HEALTH & SAFETY CODE ANN. § 481.115(f) (W EST 2010). court granted the State’s motion, revoked Appellant’s community supervision and

adjudicated him guilty of the charged offense. Sentence was imposed at fifty years

confinement.

Both the clerk's record and reporter's record have been filed. Appellant's brief

was due to be filed on September 28, 2012, but has not been filed. By letter dated

October 11, 2012, appointed counsel, Ronald T. Spriggs, was advised that the brief

remained outstanding and was granted until October 22, 2012, 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 responded to the notice

nor communicated with the Clerk of this Court regarding this appeal.

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 a brief is filed in accordance with this opinion.

Should counsel file Appellant's brief on or before, November 16, 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 still desires to prosecute the appeal;

2 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). 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

November 30, 2012. If new counsel is appointed, Appellant's brief shall be due thirty

days after the date of appointment; however, should Mr. Spriggs be allowed to remain

as appointed counsel, he is hereby ordered to file Appellant's brief instanter.

It is so ordered.

Per Curiam

Do not publish.

2 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. Guillory, 557 S.W.2d at 121. The trial judge has the authority to require appointed counsel to file a brief on behalf of an appellant. Id. 3