Full Opinion (html_with_citations)

Order entered December 15, 2022




                                        In The
                              Court of Appeals
                       Fifth District of Texas at Dallas

                                No. 05-22-00469-CR
                                No. 05-22-00470-CR

                      RUBEN OMAR MORENO, Appellant

                                          V.

                        THE STATE OF TEXAS, Appellee

                 On Appeal from the County Court at Law No. 1
                            Rockwall County, Texas
                 Trial Court Cause Nos. CR18-2212, CR18-2213

                                       ORDER

      We REINSTATE this appeal.

      These cases are appeals from convictions following plea bargains. Although

our jurisdiction over appeals from plea bargains is usually limited, the trial court’s

certifications of appellant’s right to appeal indicate the trial court expressly granted

appellant permission to appeal. See TEX. R. APP. P. 25.2(a)(2)(C).

      Appellant’s brief is overdue. On November 3, 2022, we ordered the trial

court to make findings of fact and recommendations of whether appellant desires
to appeal, or whether appellant or his counsel has abandoned the appeal. The trial

court held a hearing on November 17, 2022, pursuant to our order, but neither

appellant nor his appointed counsel, Matthew Scott Pillado, appeared. The State’s

attorney told the trial court that both the court and he had sent appellant’s counsel

notice of the time and date of the hearing. The trial court took judicial notice of

the file.     Following the hearing, the trial court made findings of fact and

conclusions of law. The findings of fact included that the court’s file included

notices of the time and date of the hearing sent to appellant’s counsel. The trial

court concluded that because appellant and his counsel had not appeared at the

hearing, appellant and his counsel had abandoned the appeal.            The State’s

attorney’s statements that appellant’s counsel had notice of the time and date of the

hearing support the trial court’s conclusion that appellant’s counsel had abandoned

the appeal, but there is no evidence that appellant personally received notice of the

hearing, either from the trial court, his attorney, or the State. Accordingly, we

agree with the trial court’s conclusion that appellant’s counsel has abandoned the

appeal, but the record does not support the conclusion that appellant has abandoned

the appeal.

      Accordingly, we ORDER Matthew Scott Pillado removed as appellant’s

appointed attorney in this case.
      We ORDER the trial court to appoint new counsel to represent appellant in

this appeal and to transmit the order appointing counsel to this Court within

FIFTEEN DAYS of the date of this order.

      We DIRECT the Clerk to send copies of this order, by electronic

transmission, to the Honorable Brian Williams, Presiding Judge, County Court at

Law No. 1 of Rockwall County; Matthew Scott Pillado; the Rockwall County

District Attorney’s Office.

      We ABATE the appeal to allow the trial court to comply with this order.

The appeal shall be reinstated fifteen days from the date of this order or when the

order appointing new counsel is received.




                                            /s/    ROBERT D. BURNS, III
                                                   CHIEF JUSTICE