Opinion
01-22-00492-CR
08-31-2023
Floribeth Sandoval Benjume v. The State of Texas
Trial court: 461st District Court of Brazoria County Trial court case number: 92061-CR
ORDER OF ABATEMENTGordon Goodman Judge
The record was filed in the above-referenced appeal on October 4, 2022, making appellant's brief originally due on November 3, 2022. See Tex. R. App. P. 38.6(a). After multiple extensions of time, appellant's counsel still has not filed a brief on appellant's behalf.
We abate the appeal and remand the cause to the trial court to conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's counsel shall be present. At the trial court's discretion, appellant may be present for the hearing in person or, if incarcerated, he may participate in the hearing by closed-circuit video teleconferencing.
We direct the trial court to:
1) determine whether appellant still wishes to pursue this appeal;
2) if appellant wishes to pursue this appeal, determine whether appellant's counsel has abandoned the appeal;
3) if counsel has not abandoned the appeal, then
a. inquire of counsel the reasons, if any, that counsel failed to file a brief on appellant's behalf; and
b. set a date certain when appellant's brief will be due, regardless of whether this Court has yet reinstated this appeal and no later than 30 days from the date of the hearing;
4) if counsel has abandoned this appeal, enter a written order relieving counsel of duties as appellant's counsel, including in the order the basis for the finding of abandonment, determine whether appellant is indigent, and
a. if appellant is indigent, appoint substitute appellate counsel at no expense to appellant;
b. if appellant is not indigent, admonish appellant of the dangers and disadvantages of self-representation, and
i. determine whether appellant is knowingly and intelligently waiving his right to counsel and, if so, obtain a written waiver of the right to counsel and set a date certain when appellant's briefs are due, regardless of whether this Court has yet reinstated these appeals and no later than 30 days from the date of the hearing; or,
ii. if appellant does not wish to proceed pro se, provide a deadline by which appellant must hire a new appellate attorney;
5) enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations; and
6) make any other findings and recommendations the trial court deems appropriate.See Tex. Code Crim. Proc. art. 1.051(a), (c), (d)(1), (f); Tex.R.App.P. 38.8(b); Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003) (stating that presumption in favor of right to choice of counsel may be overridden by other factors relating to fair and orderly administration of justice); cf. Tex. Code Crim. Proc. art. 1.051(g) (requiring trial court to advise defendant of dangers and disadvantages of self-representation prior to proceeding to trial), 26.04(j)(2) (authorizing trial court to order appointed counsel to withdraw after finding of good cause is entered on record).
The court coordinator of the trial court shall set a hearing date no later than 30 days from the date of this order and notify the parties and the Clerk of this Court of such date. The trial court clerk is directed to file a supplemental clerk's record containing the trial court's findings and recommendations with this Court within 30 days of the date of the hearing. The court reporter is directed to file the reporter's record of the hearing within 30 days of the date of the hearing.
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 the reporter's record of the hearing are filed in this Court.
It is so ORDERED.