Opinion
Appellate case number: 01-15-00128-CR
11-03-2016
Timothy Dynell George v. The State of Texas
THIRD ORDER OF CONTINUING ABATEMENT Trial court case number: 1431234 Trial court: 185th District Court of Harris County
On October 20, 2016, this Court had continued the abatement for a late-brief hearing for the trial court to determine, among other things, whether the appellant, Timothy Dynell George, still wished to prosecute this appeal and, if so, whether appellant's counsel, Robert T. Wallace, had abandoned his appeal and should be relieved of his duties. On October 27, 2016, the trial court's coordinator filed a fax with this Court requesting withdrawal of this Court's abatement order, and attached document showing that the appellant was different from the defendant identified in that order. Apparently, this Court had inadvertently confused the appellant with a different defendant named Timothy Dynell George, but who has a different date of birth from appellant. Accordingly, the Clerk of this Court is directed to WITHDRAW the Second Order of Continuing Abatement.
Although the trial court held an abatement hearing on March 10, 2016, the trial court has not entered the requested findings following that hearing. At the end of that abatement hearing, after the trial judge detailed the trial court coordinator's efforts to contact appellant and his counsel over the past several months for the late-brief hearing, the trial judge made no findings on abandonment because she noted that if appellant "resurfaces, the Court will certainly make every effort to determine where he stands with this appeal and appoint counsel to continue the appeal, if necessary." But according to the clerk's record, on July 14, 2014, the trial court had granted the appellant's motion to substitute counsel because appellant's retained counsel, Robert T. Wallace, appeared to replace his appointed counsel, Randall J. Ayers. Thus, Robert T. Wallace was retained by appellant, and there was no subsequent order by the trial court finding that appellant's non-indigent status had changed.
However, the trial court has not complied with this Court's March 15, 2016 abatement order requesting findings of fact on whether appellant or his retained counsel, Robert T. Wallace, has abandoned this appeal, for purposes of this Court proceeding without briefs. See TEX. R. APP. P. 38.8(b)(2) (noting that if appellate court abates for late-brief hearing, the trial court must "determine whether the appellant desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether retained counsel has abandoned the appeal, and to make appropriate findings and recommendations"); 38.8(b)(4) ("If the trial court has found that the appellant no longer desires to prosecute the appeal, or that the appellant is not indigent but has not made the necessary arrangements for filing a brief, the appellate court may consider the appeal without briefs, as justice may required."); see, e.g., Washington v. State, No. 01-13-01038-CR, 2015 WL 7300511, at *2 (Tex. App.—Houston [1st Dist.] Nov. 19, 2015, no pet.) (mem. op., not designated for publication) (proceeding without briefs after noting that trial court found that appellant had abandoned his appeal after trial court was unable to locate appellant for abatement hearing).
Accordingly, we sua sponte abate the appeal again and remand for the trial court to enter written findings of fact and conclusions of law on the following issues:
(1) make a finding on whether appellant's retained counsel, Robert T. Wallace, has abandoned the appeal, summarizing that court's efforts to contact him; or
(2) make a finding on whether appellant wishes to prosecute this appeal, or is not indigent but has not made the necessary arrangements for filing a brief, summarizing that court's efforts to contact him; or
(3) make a finding as to whether appellant has abandoned this appeal, by failing to appear at the abatement hearing or to update his address with the court; and
(4) make any other findings and recommendations the trial court deems appropriate; and
(5) enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.
The trial court shall make the appropriate findings and conclusions, and any orders, and shall cause them to be filed with the district clerk within 30 days of the date of this order. We further order the district clerk to file a supplemental clerk's record containing the trial court's findings of fact and conclusions of law, and any orders, with this Court within 30 days of the date of this order. See TEX. R. APP. P. 34.5(c)(2), (3).
This appeal is abated, treated as a closed case, and removed from this Court's active docket. This appeal will be reinstated on this Court's active docket when the supplemental clerk's record, that complies with this Order, is filed in this Court. If the trial court finds that appellant has abandoned this appeal and relieves counsel of his duties, this Court may move forward to decide this appeal without a brief from appellant. See TEX. R. APP. P. 38.8(b)(4).
It is so ORDERED. Judge's signature: /s/ Laura Carter Higley
[×] Acting individually Date: November 3, 2016