# Fourth Court of Appeals

San Antonio, Texas

December 12, 2016

No. 04

- 16

- 00613

- CR

Victor Leonel RODRIGUEZ,

Appellant

v.

The STATE of Texas, Appellee

From the 111th Judicial District Court, Webb County, Texas

Trial Court No. 2015CRS001361 D2 Honorable Monica Z. Notzon, Judge Presiding



### O R D E R

On October 20, 2016, the court reporter responsible for preparing the reporter’s record in this appeal filed a notification of late record stating the reporter’s record ha d not been filed because appellant: (1) ha d failed to pay or make arrangements to pay the reporter’s fee for preparing the record and appellant is not entitled to appeal wit hout paying the fee; and (2) had failed to request the record in writing. By order dated October 21, 2016, appellant was orde red to provide written proof to this court by October 31, 2016 that (1) the appellant ha d requested the court reporter to prepare the reporter’s record, which request must designate the portions of the proceedings and the exhibits to be included, see T EX

. R. A PP

. P. 34.6(b)(1); and (2) either (a) the reporter’s fee ha d been paid or arrangements have been made to pay the reporter’s fee; or (b) appellant is entitled to appeal without paying the reporter’s fee. The order stated that i f appellant

fail ed to res pond within the time provided, appellant’s brief would be due by November 21, 2016, and the court would c onsider only those issues or points raised in appellant’s brief that do not require a reporter’s record for a decision. See T EX

. R. A PP

. P. 37.3(c).

Appellant did not respond to our prior order and has not filed his brief. On November 28, 2016, this court ordered appellant’s attorney to provide this court with a written, reasonable explanation for his failure to timely file the brief and the steps be ing taken to remedy the deficiency by December 8, 2016

. The order stated if appellant’s attorney fail ed to file an adequate response by December 8, 2016 , this appeal would be abated to the trial court for an abandonment hearing, and the trial court would be asked to consider whether sanctions are appropriate. T EX

. R. A PP

. P. 38.8(b)(2).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 th e 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 includ e 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.

T he 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 to be present at the hearing.

The trial court is further ORDERED to fi le supplemental clerk’s and reporter’s records in this court, no later than January 9, 2017, 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.

_________________________________ Sandee Bryan Marion, Chief Justice

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

court on this 12th day of December, 2016

.

___________________________________ Keith E. Hottle

Clerk of Court