The State of TexasAppellee



# Fourth Court of Appeals

**San Antonio, Texas**

April 24, 2014

N o. 04

- 13

- 00187

- CR

Fernando RODRIGUEZ Jr., Appellant

v.

The STATE of Texas, Appellee

From the 341st Judicial District Court, Webb County, Texas

Trial Court No. 2011

- CRN

- 531

- D3

Honorable Rebecca Ramirez Palomo , Judge Presiding



### ORDER

Appellant ’ s brief was originally due on October 7, 2013

. On November 1, 2013, we sent a notice to appellant’s retained counsel , Mr. Fausto Sosa, stating that the brief was late and either

the brief or a motion for extension must be filed . Counsel responded on November 15, 2013 by filing a motion for extension stating that he recently underwent quadruple heart bypass surgery and requesting sixty additional days in which to file the appellant’s brief. T h e motion was granted with the notation “No Further Extensions” and the deadline for filing the a ppellant’s

brief was extended to January 6, 2014. On January 8, 2014, appellant’s counsel filed a second motion for extension of time citing complications from his surgery and requesting an extension

of thirty days . The motion was granted in part for fourteen days, extending the due date to January 28, 2014 , and counsel was informed that no further motions to extend the time to file the appellant’s brief w ould be considered by the court. The brief was not filed. In response to a February 11, 2014 phone call from the deputy clerk, counsel represented that the appellant’s brief would be filed no later than February 18, 2014. Instead, on February 21, 2014, appel lant’s

counsel filed a third motion for extension of time listing 83 cases in which he is involved, along with two other appeals, a nd requesting an additional sixty days to file the brief. The motion was granted in part for thirty days, extending the dead line for filing the appellant’s brief to March 24, 2014. Counsel was informed that this was the final extension of time that will be granted . To date, the appellant’s brief has not been filed and counsel has ignored several phone calls from the deputy cl erk of this court.In addition, the Court’s records show that Mr. Sosa is also retained counsel in two other cases pending in this Court, Appeal Nos . 04

- 13

- 00238

- CR and 04

- 13

- 00331

- CR, in which multiple extensions have been granted and the appella te brie f is well overdue.

Accordingly, p ursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we ABATE this case to the trial court and ORDER the trial court to conduct a hearing to answer the following questions:

(1) Does appellant desire to prosecute his appeal?

(2) Is appellant indigent? 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 o r retained counsel abandoned the appeal? Because sanctions may be necessary, the trial court should address this issue even if new counsel is retained or substituted before the date of the hearing.

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 the appellant’s counsel , Mr. Fausto Sosa, 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 thirty days after the date of this order , 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) recom mendations addressing the above enumerated questions.

We further ORDER the Clerk of this Court to fax a copy of this order to the Honorable

Rebecca Ramirez Palomo, presiding judge of the 341st Judicial District Court, Webb County,

Texas. All appellate fi ling dates are ABATED pending further orders from this court.

_________________________________ Rebeca C. Martinez, Justice

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

court on this 24th day of April, 2014

.

___________________________________ Keith E. Hottle

Clerk of Court