The State of TexasAppellee

Fourth Court of Appeals

San Antonio, Texas

April 24, 2014

No. 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. The motion was 

granted with the notation “No Further Extensions” and the deadline for filing the appellant’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 would 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, appellant’s 

counsel filed a third motion for extension of time listing 83 cases in which he is involved, along 

with two other appeals, and requesting an additional sixty days to file the brief. The motion was 

granted in part for thirty days, extending the deadline 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 clerk 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 appellate brief is well overdue.

Accordingly, pursuant 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 or 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) recommendations 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 filing 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