Fourth Court of Appeals
San Antonio, Texas
February 16, 2017
No. 04-16-00241-CR
Cody Allen WATERS,
Appellant
v.
The STATE of Texas,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR1094
Honorable Lori I. Valenzuela, Judge Presiding
ORDER
Appellant’s brief was first due on September 8, 2016.
On October 21, 2016, Appellant filed a letter with this court and expressed his “sincere
concern for the lawyer that has been appointed” in his case. After court-appointed counsel
Andrea Polunsky repeatedly missed deadlines to file the brief, on November 21, 2016, we abated
this appeal and remanded the cause to the trial court for an abandonment hearing. The trial court
found Appellant desires to prosecute his appeal, it allowed Andrea Polunsky to withdraw, and it
appointed Suzanne M. Kramer as counsel on appeal.
On December 22, 2016, we reinstated the appellate timetable and set Appellant’s brief
due on January 23, 2017. On February 2, 2017, we ordered Suzanne M. Kramer to file
Appellant’s brief not later than February 13, 2017. To date, attorney Suzanne M. Kramer has not
filed the brief or a motion for extension of time to file the brief.
For the second time, we ABATE this appeal and REMAND the cause to the trial court.
See TEX. R. APP. P. 38.8(b); Samaniego v. State, 952 S.W.2d 50, 52–53 (Tex. App.—San
Antonio 1997, no pet.).
We ORDER the trial court to conduct a hearing in compliance with Rule 38.8(b) to
answer the following questions:
(1) Does Appellant still desire to prosecute his appeal?
(2) Will court-appointed counsel Suzanne M. Kramer file a brief or a motion to
dismiss within TEN DAYS of the date of the abandonment hearing? If not, the
trial court must appoint new counsel.
The trial court, in its discretion, may receive evidence on the first question by sworn
affidavit from Appellant or by allowing Appellant to appear via electronic means (e.g., telephone
or videoconference). However, the trial court shall order Suzanne M. Kramer to be physically
present at the hearing. See id. R. 38.8(b)(3).
The trial court is further ORDERED to file supplemental clerk’s and reporter’s records in
this court, not later than THIRTY DAYS from the date of this order, which shall include the
following: (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. See id. This court will consider the supplemental records in its
determination whether to initiate contempt proceedings against Appellant’s counsel. See id. R.
38.8(b)(4); In re Fisch, 95 S.W.3d at 732; Samaniego v. State, 952 S.W.2d at 53.
All other appellate deadlines are SUSPENDED pending further order of this court.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 16th day of February, 2017.
___________________________________
Keith E. Hottle
Clerk of Court