### NUMBER 13 - 15 - 00 123 - CR 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

LUCAS MORIN , A PPELLANT ,
v. THE STATE OF TEXAS, A PPELLEE

.

On a ppeal from the 156th District Court

of Bee County, Texas.



## ORDER Before Chief Justice Valdez and Justices Rodriguez and Garza Order Per Curiam This cause is before the Court on appellant’s counsel’s failure to file the brief. On September 14, 2015, this Court granted appellant’s second motion for extension of time to file the brief and appellant’s motion to substitute counsel, directing appellan t’s new counsel , Deanna Brown Hogan, to file the brief on or before November 2, 2015.2

Pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), on November 5, 2015 , the Clerk of the Court notified appellant ’ s counsel that the brief had not been timely fil ed, requested counsel to file a response concerning the failure to file the brief within ten days, and warned counsel that the Court would abate and remand this cause to the trial court for appropriate findings if a response was not filed. Counsel neverth eless failed to file either a response or an appellate brief in this matter. On January 5, 2016, we abated and remanded this case to the trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate
Procedure. We directed the t rial court to utilize whatever means necessary to make appropriate findings and recommendations concerning the following: (1) whether appellant desires to prosecute this appeal; (2) why appellant's counsel has failed to file a brief and whet her counsel has effectively abandoned the appeal; (3) whether appellant has been denied effective assistance of counsel; (4) whether appellant's counsel should be removed; and (5) whether appellant is indigent and entitled to court

- appointed counsel. Upon remand, the trial court concluded that appellant desired to prosecute the appeal, appellant’s counsel had not abandoned the appeal, and that the delay was caused, in part, by appellant’s movement within facilities within the Texas Department of Criminal
J ustice system. The trial court found that counsel was representing appellant on a pro bono basis, that counsel should continue to represent the appellant, and that counsel should be ordered to file the brief by March 15, 2016.
The Honorable Deanna Brown Hogan did not file the brief and instead filed a third motion for extension of time to file the brief

. According to her motion, she obtained new3

employment and wa s trying to close her law firm. However, she request ed an extension of sixty days to file t he brief in this matter because “[s]ignificant time has been expended . . . to review the record, speak with trial counsel, and researching the law in order to write the brief and Lucas Moran would be prejudiced by having to request new court appointed [ap pellate] counsel.” By order issued on April 12, 2016, we granted appellant’s third motion to file the brief and ordered the Honorable Deanna Brown Hogan to file the brief on or before May 31, 2016. The Court stated that it “ looks with disfavor on the delay caused by counsel’s failure to timely file a brief in this matter ” and notified her that “[n] o further extensions will be granted absent exigent circumstances. ” We further stated that
i f c ounsel failed to file the brief within the specifie d period o f time, the Court would act appropriately to ensure that appellant's rights are protected. See id. R. 38.8(b)(4). Despite the foregoing, appellant’s counsel failed to file the brief. Instead, on June 20, 2016, appellant’s counsel filed a motion to abate this appeal “while appellant pursues a federal remedy.” We DENY this motion.
W e now ABATE this appeal and REMAND the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure. Upon re mand, the trial court shall utilize whatever means necessary to make appropriate findings and recommendations concerning the following: (1) whether appellant desires to prosecute this appeal; (2) why appellant's counsel has failed to file a brief and wheth er counsel has effectively abandoned the appeal; (3) whether appellant has been denied effective assistance of counsel; (4) whether appellant's counsel should be removed; and (5) whether appellant is indigent and entitled to court

- appointed counsel.4

If the trial court determines that appellant does want to continue the appeal, that present counsel should be removed, and that appellant is indigent and entitled to
court

- appointed counsel, the trial court shall appoint new counsel to represent appellant
in thi s appeal. If new counsel is appointed, the name, address, telephone number, email address, and state bar number of said counsel shall be included in an order appointing
counsel. The trial court shall cause its findings and recommendat ions, together with any orders it may enter regarding the aforementioned issues, to be included in a supplemental clerk's record. Furthermore, the trial court shall cause a supplemental reporter's record of any proceedings to be prepared. The supplementa l clerk's record and supplemental reporter's record, if any, shall be filed with the Clerk of this Court on or before the expiration of thirty days from the date of this order. It is so ORDERED. PER CURIAM Do not publish. T EX

. R. A PP

. P. 47.2(b)

. D elivered and filed th e 2 7th day of June , 2016

.