Opinion
Appellate case number: 01-20-00155-CR
08-13-2020
Buck Alan Winton v. The State of Texas
ORDER Trial court case number: 85805-CR Trial court: 239th District Court of Brazoria County
The clerk's record was originally due on March 11, 2020. On April 8, 2020, the Court received a notice from the Brazoria County District Clerk's office stating that payment arrangements had not been made. This Court issued notice to appellant's counsel of the failure to make payment arrangements for the clerk's record, but no response was received.
Rule 37.3(b) permits the Court to dismiss an appeal for want of prosecution if no clerk's record is filed because appellant filed to make payment arrangements, and this rule does not distinguish between civil and criminal cases. See TEX. R. APP. P. 37.3(b). But Rule 42, concerning involuntary dismissal, does distinguish between civil and criminal cases. See TEX. R. APP. P. 42. Rule 42.4 permits involuntary dismissal of a criminal case when an appellant escapes from custody. See TEX. R. APP. P. 42.4. Rule 42.3 permits involuntary dismissal in a civil case for want of jurisdiction, want of prosecution, or failure to comply with a court order or notice from the clerk requiring a response or action within a specified time. See TEX. R. APP. P. 42.3. Although the courts of appeals have dismissed for want of prosecution under these circumstances, see, e.g., Rodriguez v. State, 970 S.W.2d 133 (Tex. App.—Amarillo 1998, pet. ref'd), the rules indicate that further inquiry is required before dismissal of a criminal case for want of prosecution.
Pursuant to Rule 38.8, we abate this appeal and remand the case to the trial court for a hearing. See TEX. R. APP. P. 38.8(b)(2)-(3). We direct the trial court to conduct a hearing at which a representative of the Brazoria County District Attorney's Office, retained counsel Shawn Roberts, and appellant shall be present. The trial court shall have a court reporter record the hearing. The trial court is directed to make appropriate findings on these issues:
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 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.
(1) whether appellant wishes to prosecute this appeal; and, if so,
(2) whether retained counsel Roberts has abandoned the appeal;
(3) and, if so, whether appellant is presently
(a) indigent, in which case the trial court should appoint new appellate counsel at no expense to appellant and establish a date by which the clerk's record will be filed, no later than 30 days from the appointment; or
(b) not indigent, in which case the trial court should establish a date by which appellant shall retain new counsel;
TEX. CODE CRIM. PROC. arts. 1.051(d), 26.04; TEX. R. APP. P. 35.2, 35.3(a), (c)
(4) or, if retained counsel Roberts has not abandoned the appeals, make appropriate findings and recommendations regarding the reason that counsel has failed to make payment arrangements for the clerk's record, no later than 15 days from the date of the hearing.
The trial court shall cause a supplemental clerk's record containing its findings and recommendations, including the name, address, telephone number, and State Bar number of any substitute counsel, and the reporter's record of the hearing, to be filed in this Court no later than September 11, 2020. If the hearing is conducted by video teleconference, a certified video recording of the hearing shall be filed in this Court no later than September 11, 2020.
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 a supplemental clerk's record that complies with this order, and the reporter's record of the hearing, have been filed in this Court. The trial court coordinator 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/ Peter Kelly
[v] Acting individually [ ] Acting for the Court Date: August 13, 2020