Opinion
Appellate case number: 01-15-00835-CR
05-26-2016
Mark Anthony Dickey v. The State of Texas
ORDER OF ABATEMENT Trial court case number: 1392144 Trial court: 180th District Court of Harris County
The complete record was filed in this appeal on November 11, 2015. Appellant's brief was due on December 11, 2015. See TEX. R. APP. P. 38.6(a). After the Clerk of this Court notified appellant that the time for filing a brief had expired and appellant filed a motion for an extension of time, this Court extended the time to file appellant's brief to April 29, 2016, with no further extensions. On May 15, 2016, the Clerk of this Court notified appellant that his brief was late and, unless the Court received appellant's brief within 10 days, the Court might be required to order the trial court to conduct a hearing pursuant to rule 38.8. See TEX. R. APP. P. 38.8(b)(2), (3). Appellant did not file a brief but filed a second motion for an extension of time, requesting an extension to August 1, 2016. And. We DENY appellant's second motion for an extension of time.
We abate the appeal and remand for the trial court to immediately conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's counsel, Kurt B. Wentz, shall be present. TEX. R. APP. P. 38.8(b)(2). Appellant shall also be present for the hearing in person or, if appellant is incarcerated, at the trial court's discretion, appellant may participate in the hearing by closed-circuit video teleconferencing.
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 appellant's request, appellant and her counsel shall be able to communicate privately without being recorded or heard by the trial court or the attorney representing the State. --------
The trial court is directed to:
(1) determine whether appellant wishes to prosecute the appeal;
(2) if appellant wishes to prosecute the appeal, determine whether good cause exists to relieve Kurt B. Wentz of his duties as appellant's counsel;
(3) if good cause exists, enter a written order relieving Kurt B. Wentz of his duties as appellant's counsel, including in the order the basis for and finding of good cause, and appoint substitute appellate counsel at no expense to appellant;See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), 26.04(j)(2) (West Supp. 2013); TEX. R. APP. P. 38.8(b).
(4) if good cause does not exist, set a date certain when appellant's brief is due, regardless of whether this Court has yet reinstated the appeal and no later than 30 days from the date of the hearing;
(5) make any other findings and recommendations the trial court deems appropriate; and
(6) enter written findings of fact, conclusions of law, and recommendations as to these issues.
The trial court shall have a court reporter record the hearing and file the reporter's record with this Court within 30 days of the date of this order. 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 this order. If the hearing is conducted by video teleconference, a certified video recording of the hearing shall also be filed in this Court within 30 days of 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 the reporter's record of the hearing are filed in this Court. The court coordinator of the trial court shall set a hearing date and notify the parties and the Clerk of this Court of such date.
It is so ORDERED. Judge's signature: /s/ Terry Jennings
[v] Acting individually Date: May 26, 2016