# Fourth Court of Appeals

San Ant onio, Texas

September 28, 2015

N o. 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

m otion was not signed by the appellant as required by Rule 42.2. See T EX

. R. A PP

. P. 42.2(a) (“The appellant and his or her attorney must sign the writte n 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 a n amended motion to dismiss in conformity with Rule 42.2(a). No such motion has b een filed.

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

P ursuant 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 followin g 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 a ppointment 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 T EX

. R. A PP

. 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 f act 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.

A ll 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