Opinion
Appellate case number: 01-14-00894-CR
05-21-2015
Juan Cerda Alvarado v. The State of Texas
ORDER OF ABATEMENT Trial court case number: 11-DCR-058831 Trial court: 240th District Court of Fort Bend County
The time for appellant to file his brief has passed and no response has been made to our order of April 23, 2015 requiring a brief to be filed by May 3, 2015.
As such, we must abate this appeal and remand the case to the trial court for a hearing at which appellant and trial counsel shall be present in person. The court coordinator of the trial court shall set a date for said hearing and notify the parties, including appellant. We direct the trial court to make appropriate written findings of fact and conclusions of law and to execute any necessary orders on these issues:
If appellant is now incarcerated, he may appear by closed video teleconference. 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, 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.
1) Whether appellant still wishes to pursue this appeal;
2) If so, whether appointed counsel Zachary Maloney has abandoned the appeal and should be allowed to withdraw;
3) If Maloney is permitted to continue, set a date certain (in no event to be more than 30 days from the date of the abatement hearing) for Maloney to file a brief on behalf of his client, and, if Maloney is permitted to withdraw,
4) Whether appellant is now indigent and entitled to appointed counsel; and, if indigent,
a. appoint counsel on appeal, and5) If appellant is not indigent:
b. order the court reporter to file the reporter's record with this Court at no cost to appellant;
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (f); Oliver v. State, 872 S.W.2d 713, 716 (Tex. Crim. App. 1994); Minjares v. State, 577 S.W.2d 222, 224 (Tex. Crim. App. 1978); cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g).a. whether he has retained an attorney to file a brief, and, if so, obtain the name, address, and telephone number of retained counsel;
b. if appellant has not retained counsel, the trial court shall admonish appellant of the dangers and disadvantages of self-representation, and
i. determine whether appellant is knowingly and intelligently waiving his right to counsel; or,
ii. if appellant does not wish to proceed pro se, provide a deadline by which appellant must hire an attorney.
The trial court shall have a court reporter, or court recorder, record the hearing and file the reporter's record with the Court no later than 30 days from the date of this order. Additionally, the trial court's findings and recommendations and any orders issued pursuant to this hearing shall be included in a supplemental clerk's record and filed in this Court no later than 30 days from the date of this order. If the hearing is conducted by video teleconference, a certified electronic copy of the hearing shall be filed in this Court no later than 30 days from 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 reporter's record of the hearing are filed in this Court.
It is so ORDERED. Judge's signature: /s/ Harvey Brown
[×] Acting individually [ ] Acting for the Court
Date: May 21, 2015