NO. 07-11-0240-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JANUARY 12, 2012
______________________________
SILVERIO HERNANDEZ, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;
NO. 2674; HONORABLE GORDON H. GREEN, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Following a plea of not guilty, Appellant, Silverio Hernandez, Jr., was convicted
by a jury of aggravated assault with an affirmative finding on use of a deadly weapon.
Punishment was assessed by the jury at ten years confinement and a $5,000 fine. Both
the clerk's record and reporter's record have been filed. Appellant's brief was due to be
filed on October 12, 2011. After an extension of time in which to file the brief was
granted to November 2, 2011, the brief was not filed. By letter dated November 9,
2011, appointed counsel was advised that the brief remained outstanding and he was
granted until November 21, 2011, 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 communicated with the Clerk of this Court
regarding this appeal and Appellant's brief is still due.
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 the brief is filed in accordance with this opinion.
Should counsel file Appellant's brief on or before, January 23, 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 desires to prosecute the appeal;
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).1
1
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. Id. at 121. The trial judge has the
authority to require appointed counsel to file a brief on appellant's behalf. Id.
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
February 13, 2012. If new counsel is appointed, Appellant's brief shall be due thirty
days after the date of appointment; however, should James B. Johnston be allowed to
remain as appointed counsel, he is hereby ordered to file Appellant's brief on or before
February 6, 2012.
It is so ordered.
Per Curiam
Do not publish.
3