IN THE

TENTH COURT OF APPEALS

No. 10-23-00189-CR

No. 10-23-00190-CR

No. 10-23-00191-CR

EX PARTE AIDAN SCOTT ALVARADO

From the 443rd District Court

Ellis County, Texas

Trial Court Nos. 49605CR, 49606CR, and 49607CR

DISSENTING OPINION

I respectfully dissent to the dismissal of these appeals while these cases are abated 

for further proceedings in the trial court and before we receive the trial court’s 

supplemental record. See TEX. R. APP. P. 38.8(b)(4). An abatement order was proposed

and circulated by the assigned chamber as follows: 

Appellant’s briefs in these appeals were originally due on July 20, 

2023. The Clerk of this Court warned appellant by letter dated July 25, 2023, 

these appeals would be abated if no briefs or satisfactory responses were 

filed within 14 days from the date of the letter. More than 14 days have 

passed and no briefs or responses of any kind were filed by appellant.

Accordingly, we ABATE these appeals to the trial court to conduct 

any necessary hearings within 21 days of the date of this Order pursuant to 

Texas Rule of Appellate Procedure 38.8(b)(2) and (3), TEX. R. APP. P. 
Ex parte Alvarado Page 2

38.8(b)(2) & (3). If appellant is indigent, the trial court is also ordered to 

determine whether appellant is receiving effective assistance of counsel, 

and if not, whether to appoint new counsel to represent appellant 

effectively. If no new counsel is appointed, the trial court shall determine a 

date certain when appellant’s briefs will be filed with this Court.

The supplemental clerk’s and reporter’s records required by Texas 

Rule of Appellate Procedure 38.8(b)(3), if any, are ordered to be filed within 

28 days from the date of this Order. See TEX. R. APP. P. 38.8(b)(3).

The abatement order above was approved by all members of this Court and issued on 

August 14, 2023, in compliance with Texas Rule of Appellate Procedure 38.8(b)(2) and 

(3). See id. R. 38.8(b)(2), (3). I joined in the abatement order because we questioned

whether Alvarado’s counsel was effectively representing him in these appeals involving

the bond amounts set in two first-degree felony charges of aggravated kidnapping and a 

first-degree felony charge of burglary of a habitation with the intent to commit 

aggravated robbery. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM.

PROC. ANN. art. 1.051; see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 

L.Ed.2d 674 (1984).

On August 24, 2023, while these cases were abated, Alvarado’s attorney1 filed with 

this Court a motion for voluntary dismissal in each appeal, and on that day, the assigned 

chamber proposed and circulated three memorandum opinions that would dismiss each 

appeal. The dismissals were proposed and circulated even though we had not yet 

received the trial court’s record that “must be sent to the appellate court,” which would

1 This is the attorney who (1) failed to file briefs on behalf of Alvarado and (2) failed to respond to 

our letter of inquiry that warned the appeals would be abated and whom (3) we directed the trial court to 

evaluate for providing effective assistance of counsel to Alvarado. 
Ex parte Alvarado Page 3

include the trial court’s determination whether Alvarado was receiving effective 

assistance of counsel. TEX. R. APP. P. 38.8(b)(3). On August 25, 2023, the Clerk of this 

Court certified that an order was entered lifting the abatement and reinstating the 

appeals. No such order was circulated, nor was an order approved by a majority of this 

Court. Rule 38.8(b)(4) of the Texas Rules of Appellate Procedure dictates that appellate 

court action must be based on the trial court’s record. See id. R. 38.8(b)(4). Because the 

record before us has not been supplemented with the trial court’s determination 

regarding whether Alvarado is receiving effective assistance of counsel on appeal in 

compliance with Rule 38.8(b)(3) of the Texas Rules of Appellate Procedure and the cases 

have not been reinstated by a majority vote of this Court, I respectfully dissent. See id.

MATT JOHNSON

Justice

Dissenting Opinion delivered and filed October 12, 2023