                                Jpourti) Court of ^pealsf
                                       ^an JSntonio, tltexas^

                                              January 26,2017

                             No. 04-15-00596-CR & No. 04-16-00081-CR

                                   IN RE Patrick MONTGOMERY'

                                           SANCTIONS ORDER

        BEFORE CHIEF JUSTICE MARION, JUSTICE ANGELINI, JUSTICE CHAPA,
                                           AND JUSTICE RIOS

       This is a contempt proceeding ancillary to appeal numbers 04-15-00596-CR, Isidro
Espinosa Solis v. The State of Texas, and 04-16-00081-CR, Ricardo Martinez, Jr. v. The State of
Texas, currently pending in this court.

Appeal number 04-15-00596-CR

        Appeal number 04-15-00596-CR, Solis v. State, was filed in September 2015. In July
2016, appellant's retained attomey was disbarred. At that time, the record was complete and
appellant's brief was past due. On August 9,2016, the trial court appointed Patrick Montgomery
to represent appellant in the appeal. On August 23, this court ordered appellant's brief due
September 22, 2016. When neither the brief nor a motion for extension of time to file the brief
was filed by the due date, the Clerk of this court sent Mr. Montgomery a letter pursuant to Texas
Rule of Appellate Procedure 38.8(b)(2). The letter required a written response from Mr.
Montgomery by October 7, 2016, and advised that if an adequate response were not timely filed,
the appeal would be abated for an abandonment hearing.

       Mr. Montgomery did not respond to the Clerk's letter. Accordingly, on October 13. 2016.
this court abated the appeal and ordered the trial court to conduct a hearing and determine
whether Solis desired to continue prosecuting the appeal and whether counsel had abandoned the
appeal. At the hearing held October 28, 2016, Mr. Montgomery told the trial court the brief
would be filed by November 14. The trial court found Mr. Montgomery had not abandoned the

'Ancillary to appeal number 04-15-00596-CR, Isidro Espinosa Solis v. The State of Texas, appealed from the I75lh
Judicial District Court, Bexar County, Texas, Trial Court Cause No. 2G14CR2691, and appeal number 04-16-00081-
CR, Ricardo Martinez, Jr. v. The State of Texas, appealed from the 186th Judicial District Court, Uexar County.
Texas, Trial Court Cause No. 2013CR6697.
appeal and that he would file appellant's brief by November 14, 2016. We reinstated the appeal
and ordered the brief due November 15,2016.

       Mr. Montgomery did not file either a brief or a motion for extension of time by the date
ordered. On November 29, 2016, after a telephone call from the office of the Clerk of the Fourth
Court of Appeals, Mr. Montgomery filed a motion for extension of time, requesting ten days
from the date of the motion to file the brief. This court granted the motion in an order dated
December 2,2016. The order stated in part:

               We order Pat Montgomery to file appellant's brief by December 9, 2016.
       If counsel fails to file the brief by the date ordered, we may order him to appear
       before this court to show cause why he should not be held in contempt for failing
       to comply with the court's order.

The December 2, 2016 order was sent to Mr. Montgomery by e-mail. Mr. Montgomery did not
file appellant's brief or any other response to our December 2,2016 order.

       Therefore, on December 19, 2016, the court issued an order requiring Mr. Montgomery
to appear in the courtroom at the Fourth Court of Appeals, 300 Dolorosa, Suite 3200, San
Antonio, Texas, on January 25, 2017, at 2:00 p.m. to show cause "why he should not be held in
criminal contempt and civil contempt of this court or otherwise sanctioned for violating this
court's December 2, 2016 order by failing to file appellant's brief by December 9, 2016." The
show cause order advised Mr. Montgomery that he has the right to be represented by counsel at
the hearing and that the proceedings would be recorded by a certified court reporter. The court's
order and precept were personally served on Mr. Montgomery by a Bexar County Deputy Sheriff
on January 6, 2017, and the return has been filed in this court. Mr. Montgomery has not filed a
brief in appeal number 04-15-00596-CR.

Appeal number 04-16-00081-CR

        Appeal number 04-16-00081-CR was filed on February 17, 2016. Appellant's brief was
due on August 26, 2016. Appellant's attorney, Patrick Montgomery, did not file the brief or a
motion for extension of time. This court issued a notice of late brief on September" 7, 2016,
granting an extension to September 19, 2016. Mr. Montgomery still did not file appellant s
brief. On September 26,2016, this court ordered Patrick Montgomery to file appellant's brief on
or before September 30, 2016, and cautioned that if he failed to do so, the court would abate the
appeal for an abandonment hearing and contempt proceedings would also be initiated against
him. See Tex. R. App. P. 38.8(b)(2),(4). The brief was not filed.

        Therefore, pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), on October 11,
2016, this court abated the appeal and ordered the trial court to hold an abandonment hearing. On
November 8, 2016, this court received a supplemental clerk's record that included the trial
court's findings of fact and conclusions of law. The trial court found appellant desires to pursue
the appeal, appellant is indigent, and Mr. Montgomery has not abandoned this appeal.

         On December 2, 2016, this court reinstated the appeal and ordered "Patrick Montgomery
to file appellant's brief on or before December 28, 2016." The order advised Mr. Montgomery
that no further extension would be granted and that if he failed to timely file appellant's brief.
this court would order him to personally appear to show cause why he should not be held in
contempt of court. Mr. Montgomery failed to comply with this court's December 2,2016 order.

       Therefore, on January 5, 2017, the court issued an order requiring Mr. Montgomery to
appear in the courtroom at the Fourth Court of Appeals, 300 Dolorosa, Suite 3200, San Antonio,
Texas, on January 25, 2017, at 2:00 p.m "to show cause why he should not be held in contempt
of this court or otherwise be sanctioned for violating this Court's orders" by failing to file
appellant's brief by December 28,2016. The show causeorder advised Mr. Montgomery that he
has the right to be represented by counsel at the hearing and that the proceedings would be
recorded by a certified court reporter. The court's order and precept were personally served on
Mr. Montgomery by a Bexar County Deputy Sheriff on January 6, 2017, and the return has been
filed in this court. Mr. Montgomery filed the appellant's brief in appeal number 04-16-00081-
CR on January 24,2017.

Hearing


        On January 25, 2017, Patrick Montgomery personally appeared before this court to show
cause why he should not be held in contempt of court or sanctioned. The court admonished Mr.
Montgomery of his right to counsel and he knowingly, voluntarily, and intelligently waived his
right to assistance of counsel. The court further admonished Mr. Montgomery that he had the
right to present evidence and argument on his own behalf and that he had the right not to
incriminate himself. The proceedings were recorded by certified court reporter Tracy Plummer.

       The court took judicial notice of its files in appeal numbers 04-15-00596-CR and 04-16-
00081-CR and admitted into evidence, without objection, two affidavits signed by Luz Estrada,
Chief Deputy Clerk of the Fourth Court of Appeals. The court determined that Patrick
Montgomery failed to comply with this court's December 2, 2016 order in each appeal. The
court gave Mr. Montgomery an opportunity to present evidence and argument.

       Mr. Montgomery acknowledged he received the court's December 2, 2016 order in each
of these appeals, that the orders were clear, that he understood his obligation to file the
appellant's briefs by the deadlines stated in the orders, and that he failed to comply with the
orders. Mr. Montgomery offered explanations for his failure to obey the court's orders.

Findings and Orders


       After deliberating, the court finds that its December 2, 2016 order in appeal number 04-
15-00596-CR was clear, specific, and unambiguous, that Patrick Montgomery had knowledge of
the order, and that he failed to comply with the order. The court further finds that its December
2, 2016 order in appeal number 04-16-00081-CR was clear, specific, and unambiguous, that
Patrick Montgomery had knowledge of the order, and that he failed to comply with the order.
However, we decline to hold Patrick Montgomery in contempt, and instead conclude he should
be sanctioned for his violation of this court's orders.

      IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that                                Patrick
Montgomery is NOT GUILTY of contempt.
        It is further ORDERED, pursuant to the court's Inherent power, that Patrick Monigoinery
be and hereby is removed as appointed counsel for appellant in each of the following appeals
currently pending in this court:

       Appeal No. 04-i5-00596-CR, Isidro Espinosa Solis v. TheSlate of Texas.
       Appeal No. 04-16-00563-CR, Jon Eric Adam Andrade v. The Slate of Texas, and
       Appeal No. 04-16-00622-CR,/Anfont'o Torres v. TheState of Texas.

       It is further ORDERED, pursuant to the court's inherent power, that Patrick Montgomery
not accept any new representation, either by appointment, for fee, or pro bone, of any client in
any appellate matter within the jurisdiction of this court of appeals from the date of this order
through January 24, 2018.

       IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this
judgment to the Bexar County Criminal District Court Coordinator together with a request to
remove the name of Patrick Montgomery from the list of attorneys eligible for court-
appointments in appellate ca,ses for a period of one year.

       IT IS FURTHER ORDERED that Patrick Montgomery shall pay all costs of this
proceeding to the Clerk of the Court of Appeals, Fourth Court of Appeals District of Texas no
later than February 28, 2017.

       IT IS FURTHER ORDERED that all writs and other process necessary for the
enforcement of this judgment be issued.

       SIGNED this 26"' day of January 2017.



                                                           Sandee Bryan Marion, Chief Justice




                                                           Karen Angelini, Jiiaice




                                                           Luz Elena D. Chapa, Justice




                                                            Irene Rios, Justice
        IN WITNESS WHEREOF, I have hereunto set my hand an^ affixed the j|eal of said court
on this 26''' day of January, 2017.



                                                        Keith E. Hottle, Clerk




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