                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                           ORDER

Appellate case name:        Jonathan Uribe v. The State of Texas

Appellate case number:      01-14-00265-CR

Trial court case number:    2013CR5298

Trial court:                290th District Court of Bexar County

       On August 8, 2014, appellant’s appointed counsel, Shawn Sheffield, filed a brief,
pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967),
concluding that the above-referenced appeal is frivolous. See also In re Schulman, 252
S.W.3d 403, 406 (Tex. Crim. App. 2008). We struck the brief on August 26, 2014, after
determining that the brief was deficient because it “provide[d] no discussion of the
evidence,” “provide[d] no aid to appellant or to this Court,” and “fail[ed] to meet the
requirements of Anders.” See McCoy v. Court of Appeals of Wisc., Dist. 1, 486 U.S. 429,
442, 108 S. Ct. 1895, 1903–04 (1988); Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400;
High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). We therefore ordered
counsel to file a new brief, by September 25, 2014, “correcting the deficiencies in the
stricken brief and presenting a full discussion of the evidence presented in the trial court.”
        After receiving an extension of time within which to file the brief, counsel filed a
new brief on October 2, 2014. The new brief, which presents several arguments for
reversing the trial court’s judgment and remanding for a new trial, fails to comply with
the rules of appellate procedure. See generally TEX. R. APP. P. 38.1. Specifically, the
brief fails to include a statement regarding oral argument1 and fails to include a statement
of facts. See id. 38.1(e), (g). Further, the argument section of the brief fails to “contain a
clear and concise argument for the contentions made” and fails to contain appropriate

1
       Although the cover of the brief states that appellant is waiving oral argument, the
       brief fails to “include a statement explaining why oral argument . . . should not be
       permitted.” TEX. R. APP. P. 38.1(e).
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citations to the record. Id. 38.1(i). For example, the section of the brief presenting the
first point of error argues that the State failed to tender material exculpatory evidence to
the defense in a timely manner, in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194 (1963), but it neither identifies the evidence that was allegedly withheld from the
defense nor provides any citations to the record from which the evidence could be
identified. Moreover, by failing to present a statement of facts or to provide a full
discussion of the evidence presented in the trial court, the new brief fails to comply with
our August 26, 2014 order. Accordingly, we once again strike appellant’s defective brief.
See TEX. R. APP. P. 38.9.
       However, because appellant’s brief was originally due on May 12, 2014, and
because counsel has now filed two defective briefs with this Court, thereby causing
significant delay in this appeal, we will not require counsel to file another brief.
       We therefore abate this appeal and remand for the trial court to immediately
conduct a hearing at which a representative of the Bexar County District Attorney’s
Office and appellant’s counsel, Shawn Sheffield, shall be present. See TEX. R. APP.
38.8(b) (requiring appellate court to abate case to trial court for hearing when appellant in
criminal case fails to timely file brief), 38.9(a) (authorizing appellate court to proceed as
if party failed to file brief when party fails to file proper brief after being afforded
opportunity to amend or redraw original brief), 38.9(b) (authorizing appellate court to
“make any other order necessary for a satisfactory submission of the case” when party’s
brief fails to properly present case). Appellant shall also be present for the hearing in
person or, if appellant is incarcerated, at the trial court’s discretion, appellant may
participate in the hearing by closed-circuit video teleconferencing.2

       The trial court is directed to:

       (1) determine whether appellant still wishes to prosecute the appeal;
       (2) if appellant does wish to prosecute the appeal, appoint substitute appellate
           counsel at no expense to appellant and allow counsel Shawn Sheffield to
           withdraw from this case;
       (3) make any other findings and recommendations the trial court deems
           appropriate; and
       (4) enter written findings of fact, conclusions of law, and recommendations as to

2
       Any such teleconference must use a closed-circuit video teleconferencing system
       that provides for a simultaneous compressed full motion video and interactive
       communication of image and sound between the trial court, appellant, and any
       attorneys representing the State or appellant. On request of appellant, appellant
       and his counsel shall be able to communicate privately without being recorded or
       heard by the trial court or the attorney representing the State.
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           these issues, separate and apart from any docket sheet notations.

See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), 26.04(j)(2) (West Supp.
2014); TEX. R. APP. P. 38.8(b), 38.9.

       The trial court shall have a court reporter record the hearing and file the reporter’s
record with this Court within 30 days of the date of this order. The trial court clerk is
directed to file a supplemental clerk’s record containing the trial court’s findings and
recommendations with this Court within 30 days of the date of this order. If the hearing
is conducted by video teleconference, a certified video recording of the hearing shall also
be filed in this Court within 30 days of the date of this order.

        The appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket when the
supplemental clerk’s record and the reporter’s record of the hearing are filed in this
Court. The court coordinator of the trial court shall set a hearing date, which shall be no
later than 20 days from the date of this order, and notify the parties and the Clerk of this
Court of such date.

       It is so ORDERED.


Judge’s signature: /s/ Chief Justice Sherry Radack
                     Acting individually  Acting for the Court

Date: February 5, 2015




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