                            Fourth Court of Appeals
                                   San Antonio, Texas
                                         October 3, 2016

                                      No. 04-16-00017-CR

                                        James MOODY,
                                           Appellant

                                                v.

                                   THE STATE OF TEXAS,
                                         Appellee

                  From the County Court at Law No. 15, Bexar County, Texas
                                   Trial Court No. 413867
                       The Honorable Robert Behrens, Judge Presiding


                                         ORDER
       The appellant’s brief in this case was originally due May 2, 2016. On May 6, 2016,
counsel was notified by telephone and letter that the brief was late. Nearly two weeks later, on
May 19, 2016, counsel filed a first motion for extension of time to file the brief. This court
granted the motion and ordered the brief due June 20, 2016.
        On June 22, 2016, this court notified counsel that the brief was late. Nearly two weeks
later, on July 5, 2016, counsel filed a second motion for extension of time to file the brief. This
court granted the motion in part and ordered the brief due August 1, 2016.
       Counsel notified this court, in a separate appeal, Mosqueda v. State, No. 04-16-00135-
CR, that sometime after July 21, 2016, he unexpectedly became a party to a family lawsuit.
       Counsel filed a third motion for extension of time to file the appellant’s brief on August
10, 2016. We granted the motion and ordered counsel to file the appellant’s brief by August 30,
2016.
       On August 30, 2016, counsel filed a brief and motion to withdraw pursuant to Anders v.
California, 386 U.S. 738 (1967), and asserted there are no meritorious issues to raise on appeal.
However, counsel failed to include as an exhibit or copy of a letter he sent to the appellant
demonstrating counsel had complied with the requirements of Kelly v. State, 436 S.W.3d 313,
319 (Tex. Crim. App. 2014), to (1) notify appellant that counsel has filed an Anders brief and
motion to withdraw and enclose copies of the documents, (2) inform appellant of his right to
review the appellate record and file a pro se brief, (3) inform appellant of his right to file a pro se
petition for discretionary review should the court of appeals determine the appeal is frivolous,
and (4) “take concrete measures to initiate and facilitate the process of actuating [appellant’s]
right to review the appellate record, if that is what [appellant] wishes.” Id.
        On September 6, 2016, we ordered counsel to file, by September 16, 2016, a copy of
counsel’s letter to the appellant. Our September 6, 2016 order reminded counsel “that his duties
of representation do not cease when he files a motion to withdraw; counsel must continue to act
with competence, commitment and dedication to the interest of the client until the court of
appeals grants the motion.”
         Counsel did not comply with this court’s order. Our records reflect that on September 21,
2016, this court contacted counsel, and counsel represented to the court he would file a copy of
the letter on September 22, 2016. Counsel did not file a copy of the letter on or before September
22, 2016. Our records further reflect that on September 23, 2016, counsel was contacted again
about his letter to the appellant.
        On September 27, 2016, we again ordered counsel to file, by September 29, 2016, proof
that counsel sent the required letter to the appellant. We advised counsel that “if he fail[ed] to
comply with this order, the appeal w[ould] be abated for an abandonment hearing.” Counsel
failed to comply with our September 27, 2016 order and has not, as of the date of this order, filed
a copy of his letter.
       The appellant has filed a pro se motion indicating he disagrees with counsel’s
determination that there are no meritorious issues to raise on appeal and expressing his desire to
prosecute this appeal.

        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 determine whether counsel has
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 is further ordered to make written findings and conclusions on these
issues. The trial court clerk, Donna Kay McKinney, and court reporter are ordered to file in this
court, no later than October 24, 2016, (1) a reporter’s record of the hearing, and (2) a
supplemental clerk’s record containing the court’s written findings of fact, conclusions of law,
and recommendations addressing the above issues. See TEX. R. APP. P. 38.8(b)(3).



                                                       _________________________________
                                                       Luz Elena D. Chapa, Justice

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of October, 2016.


                                                       ___________________________________
                                                       Keith E. Hottle
                                                       Clerk of Court
