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Fourth Court of Appeals San Antonio, TexasJun 21, 2018
No. 04-17-00830-CR (Tex. App. Jun. 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


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

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