Javier Arriaga v. the State of Texas

Order entered December 20, 2022




                                      In The
                             Court of Appeals
                      Fifth District of Texas at Dallas

                              No. 05-22-00152-CR

                        JAVIER ARRIAGA, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

               On Appeal from the 203rd Judicial District Court
                            Dallas County, Texas
                    Trial Court Cause No. F19-55884-P

                                     ORDER

      Before the Court is appellant’s December 12, 2022 fourth motion to extend

the time to file his brief. Appellant’s brief was due on September 14, 2022. The

Court has granted appellant three previous extensions.

      In his third motion to extend, appellant cited as grounds two minor defects in

the record: a half-page of one volume of the reporter’s record was blocked out and

the clerk’s record was missing the trial court’s docket sheet. Appellant reported

that his counsel had informed the district clerk about the missing docket sheet and
that a supplemental clerk’s record would be filed shortly. Appellant further

reported that appellate counsel was attempting to contact the court reporter about

supplementing the reporter’s record.

      By order entered November 17, 2022, the Court granted appellant’s third

extension to allow counsel to rectify the issues with the record and complete

appellant’s brief. The order cautioned appellant that if his brief was not filed by

December 14, 2022, the Court would abate this case to the trial court for a hearing

on why the brief has not been filed and to address any outstanding issues with the

record.

      On November 28, 2022, the court reporter filed an amended volume of the

reporter’s record supplementing the missing lines of testimony. Although a

supplemental clerk’s record containing the docket sheet has not yet been filed,

appellant’s fourth motion to extend does not mention the docket sheet as a basis for

further extension of his brief.

      In accordance with the Court’s November 17, 2022 order, we DENY

appellant’s fourth motion to extend the time to file his brief.

      We ORDER the trial court to conduct a hearing to determine why

appellant’s brief has not been filed. The trial court shall make appropriate findings

and recommendations and determine whether appellant desires to prosecute the

appeal, whether appellant is indigent, or if not indigent, whether retained counsel



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has abandoned the appeal. See TEX. R. APP. P. 38.8(b). If the trial court cannot

obtain appellant’s presence at the hearing, the trial court shall conduct the hearing

in appellant’s absence. See Meza v. State, 

 (Tex. App.–Corpus

Christi 1987, no pet.) (per curiam). If appellant is indigent, the trial court is

ORDERED to take such measures as may be necessary to assure effective

representation, which may include appointment of new counsel.

      We ORDER the trial court to transmit a record of the proceedings, which

shall include written findings and recommendations, to this Court within THIRTY

DAYS of the date of this order.

      This appeal is ABATED to allow the trial court to comply with the above

order. The appeal shall be reinstated when the findings are received or at such

other time as the Court deems appropriate.

      We DIRECT the Clerk to transmit a copy of this order to the Honorable

Raquel Jones, Presiding Judge, 203rd Judicial District Court; to Felicia Pitre,

Dallas County District Clerk; and to counsel for the parties.


                                               /s/   LANA MYERS
                                                     JUSTICE




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