Fourth Court of Appeals

San Antonio, Texas

September 28, 2015

No. 04-15-00150-CR

Billy BENAVIDEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 229th Judicial District Court, Duval County, Texas

Trial Court No. 09-CRD-122

Honorable J. Manuel Banales, Judge Presiding

O R D E R

On July 22, 2015, we explained that appellant’s brief violated Texas Rules of Appellate 

Procedure 9 and 39. We ordered appellant to file an amended brief by August 6, 2015, 

explaining that if appellant failed to file an amended brief we would strike the brief. Appellant 

did not file an amended brief. Instead, on August 6, 2015, appellant’s retained counsel filed a 

motion to dismiss this appeal pursuant to Texas Rule of Appellate Procedure 42.2. However, the 

motion was not signed by the appellant as required by Rule 42.2. See TEX. R. APP. P. 42.2(a) 

(“The appellant and his or her attorney must sign the written motion to dismiss and file it in 

duplicate with the appellate clerk ....”). On four occasions since, appellant’s attorney has 

informed this court that he was going to file an amended motion to dismiss in conformity with 

Rule 42.2(a). No such motion has been filed.

We therefore DENY appellant’s motion to dismiss and STRIKE appellant’s brief.

Pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), 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? 
(a) 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. 

(b) If the trial court finds that appellant is not indigent, the trial 

court should determine whether appellant has made the necessary 

arrangements for filing a brief.

(3) Has appointed or retained counsel abandoned the appeal? Because initiating 

contempt proceedings against appellant’s counsel may be necessary, the trial 

court should address this issue even if new counsel is retained or substituted 

before the date of the hearing. See TEX. R. APP. P. 38.8 (b)(4).

The trial court may, in its discretion, receive evidence on the first two questions by sworn 

affidavit from appellant. The trial court shall, however, order appellant’s counsel to be present at 

the hearing.

We ORDER the trial court to file its written findings of fact and conclusions of law with 

the trial court clerk no later than thirty days from the date of this order. We ORDER the trial 

court clerk to file a supplemental clerk’s record in this court no later than ten days after the trial 

court files its findings of facts and conclusions of law. We further ORDER the court reporter to 

file in this court a supplemental reporter’s record of the hearing, along with copies of any 

documentary evidence admitted, no later than twenty days after the date of the hearing. 

All appellate deadlines are ABATED pending further orders from this court. 

_________________________________

Karen Angelini, Justice

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

court on this 28th day of September, 2015.

___________________________________

Keith E. Hottle

Clerk of