NO. 07-12-0210-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
OCTOBER 25, 2012
______________________________
ALVARADO SOCORRO GONZALEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;
NO. 4461; HONORABLE STUART MESSER, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Pursuant to a guilty plea, on April 27, 2010, Appellant, Alvarado Socorro
Gonzalez, was granted deferred adjudication and placed on community supervision for
possession of heroin in an amount of 400 grams or more. 1 In 2012, the State filed a
motion to proceed for numerous violations of the terms and conditions of community
supervision, to which Appellant entered a plea of not true. Following a hearing, the trial
1
TEX. HEALTH & SAFETY CODE ANN. § 481.115(f) (W EST 2010).
court granted the State’s motion, revoked Appellant’s community supervision and
adjudicated him guilty of the charged offense. Sentence was imposed at fifty years
confinement.
Both the clerk's record and reporter's record have been filed. Appellant's brief
was due to be filed on September 28, 2012, but has not been filed. By letter dated
October 11, 2012, appointed counsel, Ronald T. Spriggs, was advised that the brief
remained outstanding and was granted until October 22, 2012, in which to file the brief,
noting that failure to comply might result in abatement of the appeal and remand of the
cause to the trial court for further proceedings. Counsel has not responded to the notice
nor communicated with the Clerk of this Court regarding this appeal.
Consequently, we now abate this appeal and remand the cause to the trial court
for further proceedings. Upon remand, the trial court shall immediately determine why
counsel has failed to file Appellant=s brief and take such action as is necessary to
ensure that a brief is filed in accordance with this opinion.
Should counsel file Appellant's brief on or before, November 16, 2012, he is
directed to immediately notify the trial court, in writing, of the filing, whereupon the trial
court shall not be required to take further action. If, however, the brief is not filed by that
date, pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure, the
trial court is directed to conduct a hearing to determine the following:
1. whether Appellant still desires to prosecute the appeal;
2
2. whether Appellant remains indigent and is entitled to appointed
counsel; and
3. whether Appellant has been denied effective assistance of counsel
and is entitled to new appointed counsel.
See Guillory v. State, 557 S.W.2d 118, 121 (Tex.Crim.App. 1977). 2
Should it be determined that Appellant does want to continue the appeal and the
trial court determines he is entitled to new appointed counsel, the name, address,
telephone number, and state bar number of the newly-appointed counsel shall be
provided to the Clerk of this Court. The trial court shall execute findings of fact and
conclusions of law, and shall cause its findings, conclusions, and any necessary orders
to be included in a supplemental clerk's record to be filed with the Clerk of this Court by
November 30, 2012. If new counsel is appointed, Appellant's brief shall be due thirty
days after the date of appointment; however, should Mr. Spriggs be allowed to remain
as appointed counsel, he is hereby ordered to file Appellant's brief instanter.
It is so ordered.
Per Curiam
Do not publish.
2
The trial court has a duty under the Texas and federal Constitutions to provide an indigent defendant
with the effective assistance of counsel on appeal. Guillory, 557 S.W.2d at 120 (citing Douglas v.
California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)). Effective assistance cannot be afforded
without requiring that counsel file a brief on an appellant's behalf. Guillory, 557 S.W.2d at 121. The trial
judge has the authority to require appointed counsel to file a brief on behalf of an appellant. Id.
3