Opinion
Appellate case numbers: 01-16-00390-CR
08-09-2016
Hung Dasian Truong v. The State of Texas
ORDER OF ABATEMENT Trial court case numbers: 1172979 Trial court: 339th Judicial District Court of Harris County
On December 17, 2009, the trial court found appellant, Hung Dasian Truong, not guilty by reason of insanity, of manslaughter, and ordered a 30-day initial commitment under Texas Code of Criminal Procedure Article 46C.251. According to the clerk's record, filed in this Court on July 6, 2016, the trial court signed orders of recommitment of appellant to inpatient treatment following acquittal by reason of insanity under Art. 46C.261, renewing the commitment for a one-year period each time over the past several years with the most recent order having been signed on May 3, 2016.
On May 5, 2016, Staci Biggar was appointed as counsel for appellant She filed this notice of appeal on May 9, 2016, of the most recent May 3, 2016 order of recommitment of appellant to inpatient treatment. In the notice of appeal, counsel advised the court that she would continue to represent appellant on appeal. On May 16, 2016, the trial clerk's letter of assignment assigning appellant's notice of appeal to this Court listed "TO BE DETERMINED" as appellate attorney of record. The trial court's certification of appellant's right of appeal, attached to the letter of assignment, was left blank.
The right to appeal in criminal cases is conferred by the legislature, and a party may appeal only from judgments of conviction or orders authorized as appealable. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (West Supp. 2015); TEX. R. APP. P. 25.2(a)(2). "Either the acquitted person or the state may appeal from: . . . (3) an order renewing or refusing to renew an Order for Inpatient Commitment or Outpatient or Community-Based Treatment and Supervision entered under Article 46C.261." TEX. CODE CRIM. PROC. ANN. art. 46C.270(b)(3) (West Supp. 2015). Thus, because the trial court's May 3, 2016 order renewed a prior order for inpatient commitment for appellant under Article 46C.261, appellant does have a right of appeal from that order. The trial court's certification appears to be defective because no box was checked. This order constitutes notice to all parties of the apparent defective certification of the right of appeal. See TEX. R. APP. P. 37.1.
The clerk's and sealed clerk's records, both filed in this Court on July 6, 2016, did not contain an order permitting Staci Biggar to withdraw or appointing new counsel to represent appellant. See TEX. R. APP. P. 6.3(b)(3). The reporter's record was filed in this Court on July 18, 2016, making the record complete, and setting appellant's brief due within 30 days of that date, or by August 17, 2016. See TEX. R. APP. P. 38.6(a)(2). However, because no attorney's information was put on the trial clerk's letter of assignment and none has appeared in this Court on appellant's behalf, on July 20 and 29, 2016, the notices of the filing of the records, that were sent by the Clerk of this Court to the pro se appellant, were returned to this Court as "Return to Sender, Not Deliverable as Addressed, Unable to Forward." The Clerk of this Court is directed to add Staci Biggar as appellant's counsel in this case.
Pursuant to the Code of Criminal Procedure, Staci Biggar continues to represent appellant because she has not been discharged by the trial court via written order included in the clerk's records, and the appeal has not been exhausted. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (West Supp. 2015) (requiring appointed attorney to "represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record"). In addition, even if Staci Biggar is permitted to withdraw by the trial court, appellant is entitled to a new court-appointed counsel, unless his counsel, or the attorney representing the State, moved for reconsideration of the trial court's determination that he is indigent and the trial court found that a material change in his financial circumstances occurred. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); see also TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1) (West Supp. 2015); Ward v. State, 740 S.W.2d 794, 798 (Tex. Crim. App. 1987); Lopez v. State, 486 S.W.2d 559, 560 (Tex. Crim. App. 1972); Fowler v. State, 874 S.W.2d 112, 114 (Tex. App.—Austin 1994, order, pet. ref'd).
Accordingly, the Court sua sponte abates this appeal and remands the cause to the trial court for further proceedings. On remand, the trial court shall immediately conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's counsel, Staci Biggar, shall be present. 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 use of a closed-circuit video teleconferencing system.
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 of appellant, 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. --------
We direct the trial court to:
1) Execute an amended certification of appellant's right to appeal indicating whether appellant has the right of appeal in this case;
2) Determine whether appellant still wishes to pursue this appeal;
3) If appellant wishes to pursue this appeal, determine whether appellant's counsel, Staci Biggar, intends to represent appellant on this appeal or whether counsel should be permitted to withdraw;
4) If Staci Biggar intends to represent appellant on this appeal, 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;
5) If Staci Biggar has abandoned this appeal or is permitted to withdraw, enter a written order relieving Staci Biggar of her 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 and wishes to proceed pro se, 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
ii. determine whether any decision by appellant to proceed pro se is in the best interest of appellant, the State, and the administration of justice; and
iii. if so, obtain a written waiver of the right to counsel and 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; or
iv. if appellant does not wish to proceed pro se, provide a deadline by which appellant must hire an attorney;
6) Make any other findings and recommendations the trial court deems
appropriate; andSee TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f); 26.04(j)(2), (p); TEX. R. APP. P. 25.2(a)(2), (d); Ward, 740 S.W.2d at 798; Lopez, 486 S.W.2d at 560; Fowler, 874 S.W.2d at 114.
7) Enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.
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 amended certification of appellant's right of appeal and any findings, recommendations, and orders 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. 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 hearing.
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 a compliant supplemental clerk's record and the supplemental reporter's record, if any, are filed in this Court.
It is so ORDERED. Judge's signature: /s/ Evelyn V. Keyes
[×] Acting individually Date: August 9, 2016