The State of TexasAppellee/s



# Fourth Court o **f Appeals**

**San Antonio, Texas**

May 7, 2014

N o s . 04

- 13

- 00761

- CR & 04

- 13

- 00762

- CR

Ruben NERIO

, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No s . 2005CR1231 & 2005CR 1529 The Honorable Angus K. McGinty, Judge Presid ing



### ORDER

Appellant ’ s brief s in these companion cases were originally due on February 26 , 2014

. Appellant is represented on appeal by appointed counsel, M r

. Mark E. Braswell

. Mr. Braswell has been granted one extension of time in which to file the brief, until March 26, 2014 . Neither

the brief s nor a motion for extension of time were filed. Accordingly, on April 7, 2014, this

court ordered M r

. Braswell to file appellant ’ s brief s in this court no later April 25, 2014

. Our

order stated that n o further extensions of time w ould be granted , and cautioned Mr. Braswell that

if he fail ed to file appellant’s brief s b y April 25 , 201 4 , this cause w ould be abated for the trial court to conduct a hearing to determine whether: (1) appellant desires to prosecute his appeal; (2) appellant is indigent, and if so, the trial court shall take such measures as may be necessary to

assure the effective assistance o f counsel, which may include the appointment of new counsel; and (3) counsel has abandoned the appeal. Mr. Braswell failed to respond to our April 7, 2014,

order . Therefore, b ecause the brief s have not been filed, pursuant to rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we ABATE th ese case s to the trial court and ORDER the trial court to conduct a hearing no later than May 2 7 , 201 4 to answer the following questions:

(1) Does appellant desire to prosecute h is appeal s ?

(2) Is appellant indig ent? If appellant is indigent, the trial court shall take such measures as may be necessary to assure the effective assistance of counsel, which may include the appointment of new counsel.(3) Has appointed counsel abandoned the appeal s ? Because sanctio ns may be necessary, the trial court should address this issue even if new counsel is retained or substituted before the date of the hearing.

(4) If counsel has not abandoned the appeal s and if the trial court does not appoint new counsel, the trial court must obtain on the record a date certain by which appellant’s brief s will be filed

.

(5) Should M r

. Braswell be sanctioned for failure to file appellant’s brief s by

A pril 25, 2014 ?

The trial court may, in its discretion, receive evidence on the first two questions by sworn affidavit from the appellant. The trial court shall, however, order M r

. Braswell to be present at the hearing.

The trial court is further ORDERED to file supplemental clerk’s and reporter’s records in this court, no later than June 6, 2014 , which shall include: (1) a transcription of the hearing and copies of any documentary evidence admitted, (2) written findings of fact and conclusions of law, and (3) recommendations addressing the above enumerated questions. All appellate filing

dat es are ABATED pending further orders from this court.

The Clerk of this court shall cause a copy of this order to be served on M r

. Braswell by certified mail, return receipt requested, and by regular United States mail. The Clerk of this

court shall al so fax a copy of this order to the presiding judge of the 144th Judicial District Court, Bexar County, Texas.

_________________________________ Sandee Bryan Marion, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said

court on this 7th day of May, 2014

.

___________________________________ Keith E. Hottle

Clerk of Court