Fourth Court of Appeals
San Antonio, Texas
November 20, 2015
No. 04-15-00344-CR
Juan Ruben Sanchez CERDA,
Appellant
v.
The STATE of Texas,
Appellee
From the 229th Judicial District Court, Starr County, Texas
Trial Court No. 14-CRS-372
Honorable J.R. "Bobby" Flores, Judge Presiding
ORDER
Appellant’s brief was originally due September 11, 2015, but it was not filed. This court
notified appellant’s retained attorney, Jesus Maria “Chuy” Alvarez, of the deficiency by letter on
September 17. See TEX. R. APP. P. 38.8(b)(2). Although our letter required the brief or a motion
for extension of time be filed by September 27, no response was filed. On October 6, after a
telephone call from the clerk of this court, Alvarez filed a motion for extension of time to file the
brief. We granted the motion and ordered Alvarez to file appellant’s brief by November 10,
2015. We advised him that no further extensions would be granted absent a timely motion that
(1) demonstrated extraordinary circumstances justifying further delay, (2) advised the court of
the efforts counsel has expended in preparing the brief, and (3) provided the court reasonable
assurance that the brief will be completed and filed by the requested extended deadline. Our
order further advised Alvarez that if the brief or a conforming motion were not filed by the date
ordered, the appeal would be abated and remanded to the trial court for an abandonment hearing.
Neither the brief nor a motion for extension of time has been filed.
Pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we abate this
appeal, remand the case to the trial court. We order the trial court to conduct a hearing to
determine:
(1) whether appellant desires to prosecute his appeal;
(2) whether appellant has made the necessary arrangements for filing a brief; and
(3) whether counsel has abandoned the appeal. Because sanctions may be necessary, the
trial court should make a finding as to whether Alvarez abandoned the appeal 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 issue by sworn affidavit
from the appellant. The trial court shall, however, order appellant’s counsel to be present at the
hearing.
The trial court is further ordered to make written findings and conclusions on these
issues. The clerk and court reporter are ordered to file in this court, no later than December 21,
2015, (1) a reporter’s record of the hearing, and (2) a supplemental clerk’s record containing the
court’s written findings of fact, conclusions of law, and recommendations addressing the above
issues. See Tex. R. App. P. 38.8(b)(3).
Counsel is further advised that his obligation to file appellant’s brief is continuing, and
this court will accept the brief for filing during this abatement. Counsel is further advised that he
may also be ordered to appear before this court to show cause why he should not be held in
contempt for failing to comply with this court’s October 7, 2015 order.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 20th day of November, 2015.
___________________________________
Keith E. Hottle
Clerk of Court