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Fourth Court of Appeals
San Antonio, Texas
January 23, 2023
No. 04-22-00344-CR
Luis Carlos MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2021CR6587
Honorable Michael E. Mery, Judge Presiding
ORDER
Appellant’s brief originally was due to be filed on October 31, 2022. On November 14,
2022, this court notified appellant in writing that the brief was late and requested that appellant
respond in writing within ten days stating a reasonable explanation for failing to timely file the
brief. On December 5, 2022, appellant filed a motion requesting a thirty-day extension of time.1
A thirty-day extension from the original due date for the brief was November 30, 2022.
However, on December 6, 2022, in the interest of justice, we granted the request for an extension
of time, and ordered Mr. Montgomery to file appellant’s brief no later than December 30, 2022.
Our order cautioned Mr. Montgomery that no further extensions of time would be granted in the
absence of extenuating circumstances. The brief was not filed.
Therefore, on January 9, 2023, this court ordered Mr. Montgomery to either (1) file
appellant’s brief no later than January 19, 2023 or (2) respond to this court in writing no later
than January 19, 2023 stating a reasonable explanation for failing to timely file the brief and
demonstrate the steps being taken to remedy the deficiency. Our order informed Mr.
Montgomery that if he failed to file either the brief or an adequate response by January 19, 2023,
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. TEX. R. APP. P. 38.8(b)(2). Mr.
Montgomery has not responded.
1 Appellant’s attorney, Mr. Patrick Montgomery, incorrectly stated the brief was due on November 2, 2022.
Although Mr. Montgomery styles the motion as a “Second and Final Motion to Extend,” no previous request for an
extension has been filed.
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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 February 22, 2023, 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. All
appellate filing dates are ABATED pending further orders from this court.
_________________________________
Lori I. Valenzuela, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 23rd day of January, 2023.
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MICHAEL A. CRUZ, Clerk of Court