Tomas Mendoza-Torres v. State

• Court: Court of Appeals of Texas
• Decided: October 3, 2012
• Docket: 07-12-00100-CR
• Status: Published

Opinion

NO. 07-12-0100-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 3, 2012 ______________________________

TOMAS MENDOZA-TORRES,

Appellant

v.

THE STATE OF TEXAS,

Appellee _______________________________

FROM THE 137th DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2011-432,947; HON. JOHN J. "TREY" MCCLENDON, III, PRESIDING _______________________________

ABATEMENT AND REMAND _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Tomas Mendoza-Torres, appellant, appeals his conviction for possession of a controlled substance. Appellant timely perfected his appeal. The clerk's record was filed on June 15, 2012, and the reporter's record on August 15, 2012. Appellant's brief was due on September 14, 2012. On September 21, 2012, appellant's counsel was notified by letter that the brief was overdue and that unless appellant's brief was filed on or before October 1, 2012, the appeal would be abated. To date, neither a brief nor an extension motion has been received by the court. Accordingly, we abate this appeal and remand the cause to the 137th District Court of Lubbock County (trial court) for further proceedings. Upon remand, the trial court shall determine the following: 1. whether appellant desires to prosecute the appeal; 2. whether appellant is indigent; * whether appellant has been denied the effective assistance of counsel due to counsel's failure to file a timely appellate brief; and,

4. why a timely appellate brief has not been filed on behalf of appellant.

The trial court is also directed to enter such orders necessary to address the aforementioned questions. So too shall it include its findings on those matters in a supplemental record and cause that record to be filed with this court by November 2, 2012. If it is determined that appellant is indigent and has been denied the effective assistance of counsel, the trial court may appoint him new counsel; the name, address and phone number of any new counsel appointed shall be included in the aforementioned findings. Should further time be needed to perform these tasks, then same must be requested before November 2, 2012. It is so ordered. Per Curiam Do not publish.