Fourth Court of Appeals
San Antonio, Texas
June 28, 2022
No. 04-21-00529-CR
Manuel M. AYALA,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2019CR9405
Honorable Frank J. Castro, Judge Presiding
ORDER
Appellant’s brief was originally due on April 21, 2022. After Appellant did not timely
file the brief or a motion for extension of time to file the brief, we ordered Appellant’s counsel
Patrick B. Montgomery to file a motion for extension of time, a motion to dismiss, or the brief by
May 9, 2022. Appellant filed a motion for extension of time to file the brief, which we granted,
and we set the brief due on June 8, 2022.
On June 14, 2022, after no brief or second motion for extension of time to file the brief
was filed, we ordered Patrick B. Montgomery to file a motion for extension of time, a motion to
dismiss, or the brief by June 24, 2022. We warned counsel that if no brief or motion was filed by
that date, we would abate this appeal to the trial court for an abandonment hearing without
further notice. See TEX. R. APP. P. 38.8(b)(2). To date, no response has been filed.
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 desire to prosecute his appeal?
(2) Should Patrick B. Montgomery be removed from this appeal? If so, the trial court
must appoint new appellate counsel.
(3) Has appointed 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. See TEX. R. APP. P. 38.8(b)(4).
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 video conference). However, the trial court shall order Patrick B. Montgomery to be
physically present at the hearing. See id. R. 38.8(b)(3).
We further order the trial court 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 28th day of June, 2022.
__________________________________
Michael A. Cruz,
Clerk of Court