Elias Gaitan A/K/A Elias Gaitan Jr. v. State

NUMBER 13-14-00661-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ELIAS GAITAN, Appellant, V. THE STATE OF TEXAS, Appellee. On appeal from the 357th District Court of Cameron County, Texas. ORDER ABATING APPEAL Before Chief Justice Valdez and Justices Rodriguez and Garza Order Per Curiam This cause is before the Court regarding the appellant’s failure to file a designation and make arrangements for preparation of the clerk’s record. On January 5, 2015, the Clerk of this Court notified appellant that the clerk’s record was originally due on January 5, 2015, and that the deputy district clerk, Yvonne Calzada, had notified this Court that appellant failed to file a designation and make payment arrangements for preparation of the clerk’s record. Appellant was advised that, if the defect was not corrected within ten days from the date of receipt of the notice, the matter would be referred to the Court for appropriate action. See TEX. R. APP. P. 37.3(a)(2). Appellant failed to respond to the Court’s notice. On January 8, 2015, the Clerk of this Court notified appellant that the reporter’s record was due on January 5, 2015, and that the court reporter, Cynthia L. Garza, had notified this Court that appellant had failed to request the reporter’s record and make arrangements for payment of the reporter’s record. This sequence of events requires us to effectuate our responsibility to avoid further delay and to preserve the parties' rights. See id. Accordingly, this appeal is ABATED and the cause REMANDED to the trial court. Upon remand, the trial court shall utilize whatever means necessary to make appropriate findings and recommendations concerning the following: (1) whether appellant has abandoned his appeal; (2) whether his present attorney will diligently pursue the appeal; (3) if it be determined that the present attorney will not diligently pursue the appeal, whether appellant is indigent, and if so, whether other counsel should be appointed to represent him; (4) if appellant is not indigent and the present attorney will not diligently pursue the appeal, what steps need to be taken to ensure that appellant will promptly obtain the services of another attorney to pursue the appeal; and (5) if any other orders are necessary to ensure the proper and timely pursuit of appellant’s appeal. If new counsel is appointed, the name, address, telephone number, and state bar number of said counsel shall be included in an order appointing counsel. 2 The trial court shall cause its findings and recommendations, 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 supplemental clerk's record and supplemental reporter's record, if any, shall be filed with the Clerk of this Court within thirty days from the date of this order. IT IS SO ORDERED. PER CURIAM Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed the 12th day of February, 2015. 3