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 had not been filed 

because appellant: (1) had failed to pay or make arrangements to pay the reporter’s fee for 

preparing the record and appellant is not entitled to appeal without paying the fee; and (2) had

failed to request the record in writing. By order dated October 21, 2016, appellant was ordered 

to provide written proof to this court by October 31, 2016 that (1) the appellant had 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 TEX. R. APP. P. 34.6(b)(1); and (2) either (a) the 

reporter’s fee had 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 if appellant 

failed to respond within the time provided, appellant’s brief would be due by November 21, 

2016, and the court would consider only those issues or points raised in appellant’s brief that do 

not require a reporter’s record for a decision. See TEX. R. APP. 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 being taken to remedy the 

deficiency by December 8, 2016. The order stated if appellant’s attorney failed 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. TEX. R. APP. 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 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 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 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