                                                                      The State of TexasAppellee




                            Fourth Court of Appeals
                                   San Antonio, Texas
                                          April 24, 2014

                                       No. 04-13-00187-CR

                                   Fernando RODRIGUEZ Jr.,
                                           Appellant

                                                 v.

                                      The STATE of Texas,
                                            Appellee

                   From the 341st Judicial District Court, Webb County, Texas
                              Trial Court No. 2011-CRN-531-D3
                      Honorable Rebecca Ramirez Palomo, Judge Presiding


                                          ORDER

        Appellant’s brief was originally due on October 7, 2013. On November 1, 2013, we sent
a notice to appellant’s retained counsel, Mr. Fausto Sosa, stating that the brief was late and either
the brief or a motion for extension must be filed. Counsel responded on November 15, 2013 by
filing a motion for extension stating that he recently underwent quadruple heart bypass surgery
and requesting sixty additional days in which to file the appellant’s brief. The motion was
granted with the notation “No Further Extensions” and the deadline for filing the appellant’s
brief was extended to January 6, 2014. On January 8, 2014, appellant’s counsel filed a second
motion for extension of time citing complications from his surgery and requesting an extension
of thirty days. The motion was granted in part for fourteen days, extending the due date to
January 28, 2014, and counsel was informed that no further motions to extend the time to file the
appellant’s brief would be considered by the court. The brief was not filed. In response to a
February 11, 2014 phone call from the deputy clerk, counsel represented that the appellant’s
brief would be filed no later than February 18, 2014. Instead, on February 21, 2014, appellant’s
counsel filed a third motion for extension of time listing 83 cases in which he is involved, along
with two other appeals, and requesting an additional sixty days to file the brief. The motion was
granted in part for thirty days, extending the deadline for filing the appellant’s brief to March 24,
2014. Counsel was informed that this was the final extension of time that will be granted. To
date, the appellant’s brief has not been filed and counsel has ignored several phone calls from the
deputy clerk of this court.
       In addition, the Court’s records show that Mr. Sosa is also retained counsel in two other
cases pending in this Court, Appeal Nos. 04-13-00238-CR and 04-13-00331-CR, in which
multiple extensions have been granted and the appellate brief is well overdue.

       Accordingly, pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we
ABATE this case to the trial court and ORDER the trial court to conduct a hearing to answer the
following questions:

       (1) Does appellant desire to prosecute his appeal?

       (2) Is appellant indigent? If appellant is indigent, the trial court shall take such measures
       as may be necessary to assure the effective assistance of counsel, which may include the
       appointment of new counsel.

       (3) Has appointed or retained counsel abandoned the appeal? Because sanctions may be
       necessary, the trial court should address this issue even if new counsel is retained or
       substituted before the date of the hearing.

        The trial court may, in its discretion, receive evidence on the first two questions by sworn
affidavit from the appellant. The trial court shall, however, order the appellant’s counsel, Mr.
Fausto Sosa, to be present at the hearing.

        The trial court is further ORDERED to file supplemental clerk’s and reporter’s records
in this court, no later than thirty days after the date of this order, which shall include: (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.

       We further ORDER the Clerk of this Court to fax a copy of this order to the Honorable
Rebecca Ramirez Palomo, presiding judge of the 341st Judicial District Court, Webb County,
Texas. All appellate filing dates are ABATED pending further orders from this court.




                                                     _________________________________
                                                     Rebeca C. Martinez, Justice

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 24th day of April, 2014.



                                                     ___________________________________
                                                     Keith E. Hottle
                                                     Clerk of Court
