Opinion
Appellate case number: 01-13-00784-CR Trial court case number: 1295246
05-20-2014
Alfred Carl Allen v. The State of Texas
ORDER OF ABATEMENT
Trial court: 180th District Court of Harris County
The complete record was filed in this appeal on October 11, 2013. Appellant's brief, therefore, was due on November 12, 2013. See TEX. R. APP. P. 38.6(a). On December 6, 2013, the Clerk of this Court notified appellant that his brief was late and, absent a satisfactory response within 10 days, the Court would 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 responded by filing a motion for extension of time on January 27, 2014. This Court granted the motion, extending the deadline to file appellant's brief to February 25, 2014, and notifying appellant that no further extensions would be granted absent extraordinary circumstances. Appellant did not file a brief. On April 17, 2014, the Clerk of this Court notified appellant that his brief was late and, absent a satisfactory response within 10 days, the Court would 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 has not responded.
We, therefore, 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, Tony Aninao, 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 his 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;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).
(2) if appellant wishes to prosecute the appeal, determine whether good cause exists
to relieve Tony Aninao of his duties as appellant's counsel;
(3) if good cause exists, enter a written order relieving Tony Aninao 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;
(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.
The trial court shall have a court reporter record the hearing and file the reporter's record with this Court within 25 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 25 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 25 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: Terry Jennings
[v] Acting individually [ ] Acting for the Court