The State of TexasAppellee
Fourth Court of Appeals
San Antonio, Texas
March 6, 2014
No. 04-13-00395-CR
Rigo GUERRA,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, La Salle County, Texas
Trial Court No. 11-09-00042-CRL
Honorable Donna S. Rayes, Judge Presiding
ORDER
Appellant’s brief was originally due to be filed on November 18, 2013. Appellant’s first
motion requesting an extension of time to file the brief was granted, extending the deadline for
filing the brief to December 18, 2013. On December 27, 2013, the appellant filed a motion
requesting an additional extension of time to file the brief until January 17, 2014, for a total
extension of sixty days. By order dated December 30, 2013, the motion was granted. The order
stated that appellant’s brief must be filed by January 14, 2014. The motion further stated, “THIS
IS THE FINAL EXTENSION OF TIME THAT THE APPELLANT WILL BE
GRANTED.”
The brief was not filed by the January 14, 2014. On January 21, 2014, this court issued
an additional order extending the deadline for filing the brief to January 27, 2014. The order
stated that if the brief was not filed by January 27, 2014, this appeal would be abated to the trial
court for an abandonment hearing, and the trial court would be asked to consider whether
sanctions are appropriate against appellant’s attorney. TEX. R. APP. P. 38.8(b)(2). The brief was
not filed by January 27, 2014.
On February 4, 2014, we abated this appeal to the trial court for an abandonment hearing,
requesting the trial court to conduct a hearing and file supplemental records by March 6, 2014.
A copy of this order is attached to this order. On March 5, 2014, the trial court filed a motion
requesting an extension of time to conduct the hearing, stating the hearing will be held on March
14, 2014.
Despite this court’s February 4, 2014 order abating this appeal for an abandonment
hearing, appellant’s attorney filed a motion to abate this appeal on February 27, 2014, stating that
the appellate record is incomplete with regard to a hearing conducted in the underlying cause on
March 14, 2013. Appellant’s attorney further states, however, that he has been unsuccessful in
contacting the court reporter to determine the availability of the record which might also require
the entry of findings of fact and conclusions of law by the trial court. A copy of this motion is
attached to this order.
The trial court’s motion requesting an extension of time is GRANTED. The trial court is
ORDERED to file supplemental clerk’s and reporter’s records in this court, no later than March
21, 2014, which must include:
1. a transcription of the hearing and copies of any documentary evidence admitted;
2. written findings of fact and conclusions of law;
3. recommendations addressing the questions enumerated in the February 4, 2014 order; and
4. recommendations regarding the issues raised by appellant’s attorney in his February 27,
2014 motion with respect to the availability of a record in the underlying cause from a
March 14, 2013 hearing and findings of fact and conclusions of law pertinent to the
appellant’s statement or confession.
_________________________________
Catherine Stone, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 6th day of March, 2014.
___________________________________
Keith E. Hottle
Clerk of Court
The State of TexasAppellee
Fourth Court of Appeals
San Antonio, Texas
February 4, 2014
No. 04-13-00395-CR
Rigo GUERRA,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, La Salle County, Texas
Trial Court No. 11-09-00042-CRL
Honorable Donna S. Rayes, Judge Presiding
ORDER
Appellant’s brief was originally due to be filed on November 18, 2013. Appellant’s first
motion requesting an extension of time to file the brief was granted, extending the deadline for
filing the brief to December 18, 2013. On December 27, 2013, the appellant filed a motion
requesting an additional extension of time to file the brief until January 17, 2014, for a total
extension of sixty days. By order dated December 30, 2013, the motion was granted. The order
stated that appellant’s brief must be filed by January 14, 2014. The motion further stated, “THIS
IS THE FINAL EXTENSION OF TIME THAT THE APPELLANT WILL BE
GRANTED.”
The brief was not filed by the January 14, 2014. On January 21, 2014, this court issued
an additional order extending the deadline for filing the brief to January 27, 2014. The order
stated that if the brief was not filed by January 27, 2014, this appeal would be abated to the trial
court for an abandonment hearing, and the trial court would be asked to consider whether
sanctions were appropriate against appellant’s attorney. TEX. R. APP. P. 38.8(b)(2). The brief
was not filed by January 27, 2014.
Pursuant to rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, 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? 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.
(3) Has appointed or retained counsel abandoned the appeal? Because sanctions may be
necessary, the trial court should address this issue even if new counsel is retained or substituted
before the date of the hearing.
The trial court may, in its discretion, receive evidence on the first two questions by sworn
affidavit from the appellant. The trial court shall, however, order the appellant’s counsel to be
present at the hearing.
The trial court is further ORDERED to file supplemental clerk’s and reporter’s records
in this court, no later than March 6, 2014, which shall include: (1) a transcription of the hearing
and copies of any documentary evidence admitted, (2) written findings of fact and conclusions
of law, and (3) recommendations addressing the above enumerated questions.
_________________________________
Catherine Stone, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 4th day of February, 2014.
___________________________________
Keith E. Hottle
Clerk of Court
ACCEPTED
04-13-00395-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
2/27/2014 5:07:41 PM
KEITH HOTTLE
CLERK
NO.
04-‐13-‐00395-‐CR
FILED IN
RIGO
GUERRA,
§
IN
THE
COURT
4th
OF
A PPEALS
COURT OF APPEALS
Appellant
SAN ANTONIO, TEXAS
02/27/2014 5:07:41 PM
vs.
§
FOURTH
DISTRICT
OF
TEXAS
KEITH E. HOTTLE
Clerk
THE
STATE
OF
TEXAS
§
SAN
ANTONIO,
TEXAS
APPELLANT’S
MOTION
TO
ABATE
APPEAL
FOR
ENTRY
OF
FINDINGS
OF
FACT
AND
CONCLUSIONS
OF
LAW
RELATING
TO
THE
APPELLANT’S
PRE-‐TRIAL
MOTION
TO
SUPPRESS
EVIDENCE
OF
THE
APPELLANT’S
STATEMENT/CONFESSION
TO
THE
HONORABLE
COURT
OFAPPEALS:
Now
comes,
Rigo
Guerra,
appellant
in
the
instant
cause
and
files
this
“Appellant’s
Motion
to
Abate
Appeal
for
Entry
of
Findings
of
Fact
and
Conclusions
of
Law
Relating
to
the
Appellant’s
Pre-‐Trial
Motion
to
Suppress
Evidence
of
the
Appellant’s
Statement/Confession.
In
support
of
the
motion
the
appellant
would
show
unto
the
Court
the
following:
A.
The
appellant
is
presently
appealing
his
conviction
for
the
offense
of
Capital
Murder
arising
out
of
LaSalle
County
wherein
he
was
convicted
and
sentenced
to
Life
in
confinement
in
the
Texas
Department
of
Criminal
Justice.
B.
The
record
of
the
trial
along
with
the
clerk’s
record
has
been
filed
in
this
Court
and
the
matter
is
pending
of
the
appellant’s
brief
in
this
Court
by
the
undersigned.
A
review
of
the
record
has
revealed
that
a
portion
of
the
record
is
not
presently
before
the
Court.
That
portion
of
the
record
is
essential
to
an
adequate
presentation
of
the
appellant’s
allegations
of
error.
C.
The
record
reflects
that
prior
to
trial
appellant’s
trial
counsel
filed
a
written
“Motion
To
Determine
Admissibility
of
Written
Or
Oral
Statements
of
Defendant
Outside
The
Presence
of
Jury”.
(C.R.1-‐107)
The
trial
Court’s
docket
sheet
reflects
that
a
hearing
was
conducted
on
that
motion
on
March
14,
2013.
The
court
reporter’s
record
that
has
been
forwarded
to
this
Court
does
not
contain
a
record
of
that
hearing.
The
reporter’s
record
filed
with
this
Court
consists
of
the
record
of
the
trial
starting
on
May
6,
2013
with
the
jury
voir
dire
process
and
concludes
with
the
jury’s
verdict
returned
on
May
15,
2013.
The
undersigned
has
completed
a
review
of
that
record
and
has
been
unable
to
locate
a
record
of
the
hearing
on
the
appellant’s
pre-‐trial
motion
or
any
findings
of
fact
and
conclusions
of
law
relating
to
the
appellant’s
statement
that
was
ultimately
admitted
at
trial.
D.
The
undersigned
has
attempted
to
contact
the
court
reporter
in
the
instant
case
but
has
not
been
able
to
determine
whether
the
record
in
question
is
available.
Those
efforts
are
continuing.
The
undersigned
is
also
attempting
to
determine
whether
the
necessary
findings
and
conclusions
of
the
trial
court
are
available.
E.
It
would
appear
that
the
instant
matter
should
be
abated
and
returned
to
the
trial
court
for
purposes
of
the
entry
of
the
trial
Court’s
findings
of
fact
and
conclusions
of
law
pertinent
to
the
appellant’s
claims
regarding
the
admissibility
of
his
statement/confession.
See:
Vasquez
v.
State,
411
S.W.3d
918
(Tex.
Crim.
App.
2013);
State
v.
Elias,
339
S.W.3d
667
(Tex.
Crim.
App.
2011);
State
v.
Saenz,
411
S.W.3d
488
(Tex.
Crim.
App.
2013).
F.
There
are
existing
other
arguable
points
of
error
that
the
undersigned
will
continue
to
research
while
this
motion
awaits
resolution.
CONCLUSION
AND
PRAYER
Wherefore
premises
considered
the
appellant
would
request
that
this
court
abate
the
instant
appeal
for
purposes
of
the
supplementation
of
the
record
with
a
record
from
the
hearing
on
the
appellant’s
pre-‐trial
motion
to
suppress
along
with
the
trial
court’s
findings
of
fact
and
conclusions
of
law
relating
to
that
motion.
Respectfully
submitted,
________/s/__________________
Edward
F.
Shaughnessy,
III
Attorney
for
the
appellant
CERTIFICATE
OF
SERVICE
I,
Edward
F.
Shaughnessy,
attorney
for
the
appellant
hereby
certify
that
a
true
and
correct
copy
of
the
instant
motion
was
served,
by
U.S.
Mail
on
Mark
Ledet,
attorney
for
the
appellee
at
1327
3rd
Street,
Floresville
Texas,
78026,
on
this
the
27
day
of
February,
2014.
________/s/___________________
Edward
F.
Shaughnessy
Attorney
for
the
appellant