                             Fourth Court of Appeals
                                    San Antonio, Texas
                                           June 21, 2018

                                       No. 04-17-00830-CR

                                      David M. FONTANES,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                   From the 437th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2016CR6719
                         Honorable Lori I. Valenzuela, Judge Presiding


                                          ORDER
       Appellant’s brief was due on February 8, 2018. After we granted Appellant’s first
motion for extension of time to file the brief, it was due on March 26, 2018. We warned
Appellant’s counsel that any further requests for additional time to file the brief were
discouraged.
         On April 4, 2018, after no brief or motion for extension of time to file the brief was filed,
we ordered Appellant’s attorney Andrea Polunsky to file the brief or a motion to dismiss by
April 16, 2018. We warned counsel that if she did not comply with our order, we would abate
this appeal and remand the cause to the trial court for an abandonment hearing. Counsel did not
file the brief or a further motion for extension of time to file the brief.
       On April 19, 2018, we abated this appeal and remanded the cause to the trial court to
conduct a hearing under Rule 38.8(b). The trial court found Appellant desires to prosecute his
appeal, Andrea Polunsky has not abandoned the appeal, and Andrea Polunsky was not removed
from the appeal.
       In its May 11, 2018 order, the trial court ordered Andrea Polunsky to file by May 18,
2018, a motion for extension of time to file the brief, and to file the brief by June 11, 2018.
       On May 22, 2018, we reinstated this appeal. We noted that, despite the trial court’s
express order, Ms. Polunsky did not file a motion for extension of time as ordered. We ordered
Andrea Polunsky to file Appellant’s brief not later than June 12, 2018. We also warned counsel
that “NO FURTHER EXTENSIONS OF TIME TO FILE APPELLANT’S BRIEF WILL
BE GRANTED.”
        Andrea Polunsky has failed to comply with the trial court’s May 11, 2018 order and this
court’s May 22, 2018 order.
        On June 15, 2018, Andrea Polunsky filed another motion for extension of time to file the
brief until July 12, 2018. Counsel’s motion is DENIED.
       For the second time, 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 Andrea Polunsky be removed from this appeal? If so, the trial court must
              appoint new appellate counsel.

       (3)    By her repeated failures to file the brief as ordered, has appointed counsel
              effectively abandoned the appeal? 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 Andrea Polunsky to be physically
present at the hearing. See id. R. 38.8(b)(3).
        The trial court is further ORDERED to file supplemental clerk’s and reporter’s records in
this court, not later than TWENTY-ONE 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 21st day of June, 2018.



                                                    ___________________________________
                                                    Keith E. Hottle
                                                    Clerk of Court
