Luis Alberto Jaramillo, Appellant v. The State of Texas, Appellee (2016)

ORDER ON ABATEMENT AND REMAND

Appellant Luis Alberto Jaramillo appeals his conviction for possession of a controlled substance.  Appellant's brief was due on November 23, 2015.  Before this deadline, appellant filed a motion to extend the time to file his brief to December 23, 2015 and the court granted the motion.  On December 22, 2015, appellant filed a second motion to extend the time to file his brief.  The court granted an extension to January 13, 2016, but admonished appellant's counsel that failure to file a brief by January 13th could result in the appeal being abated and the cause remanded to the trial court for further proceedings under Texas Rule of Appellate Procedure 38.8(b).  To date, appellant's brief has not been filed.

Accordingly, we abate this appeal and remand the cause to the 251st District Court of Randall County (trial court) for further proceedings.  Upon remand, the trial court shall determine the following:

1. whether appellant desires to prosecute the appeal;

2. whether appellant is indigent;

3. why a timely appellate brief has not been filed on behalf of appellant;

4. whether appellant has been denied the effective assistance of counsel due to counsel's failure to file a timely appellate brief.  See Ex parte Briggs, 187 S.W.3d 458, 467 (Tex.Crim.App.2005) (holding “a reasonably competent attorney—regardless of whether he is retained or appointed—must seek to advance his client's best defense in a reasonably competent manner”);

5. whether new counsel should be appointed;  and

6. if appellant desires to continue the appeal, the date the court may expect appellant's brief to be filed.

The trial court is also directed to enter such orders necessary to address the aforementioned questions.  So too shall it include its findings on those matters in a supplemental record and cause that record to be filed with this court by February 19, 2016.  If it is determined that appellant desires to proceed with the appeal, is indigent, and has been denied the effective assistance of counsel, the trial court may appoint him new counsel;  the name, address, and phone number of any new counsel appointed shall be included in the aforementioned findings.  Should further time be needed to perform these tasks, then same must be requested before February 19, 2016.

It is so ordered.

Per Curiam