Opinion
01-24-00042-CR
07-25-2024
Gilberto Castillo v. The State of Texas
ORDER OF ABATEMENT
Veronica Rivas-Molloy Judge
Appellate case number: 01-24-00042-CR Trial court case number: 22-CR-3892 Trial court: 212th District Court of Galveston County
On July 10, 2024, Appellant Gilberto Castillo's retained counsel, Timothy A. Hootman, filed an Opposed Motion to Withdraw, seeking to withdraw as counsel due to "irreconcilable difference of opinion" as to how to proceed with this appeal. Because the motion does not contain a statement that Appellant was notified in writing of his right to object to the motion, the motion to withdraw is denied. See Tex. R. App. P. 6.5(a). Counsel's motion to withdraw also does not indicate whether Appellant has obtained substitute counsel.
On the same date, Appellant filed a Third Motion to Extend Time to File Appellant's Brief. The Clerk of the Court granted the motion and extended the deadline for Appellant's appellate brief to August 5, 2024.
Counsel "requests th[is] Court to abate th[e] case for the trial court to make the proper findings." We abate this appeal and remand the cause to the trial court for further proceedings. The trial court shall, within 10 days of this Order, conduct a hearing at which Appellant, Appellant's counsel, Timothy A. Hootman, and a representative of the Galveston County District Attorney's Office shall be present. The court coordinator for the trial court shall set a hearing date and notify the parties, including Appellant.
If he is now incarcerated, Appellant may appear by closed-circuit video teleconference. 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 his request, Appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the State's attorney.
We direct the trial court to make appropriate written findings of fact and conclusions of law and sign any necessary orders to:
(1) determine whether Appellant wishes to prosecute the appeal;
(2) if Appellant wishes to prosecute the appeal, determine whether Appellant's retained counsel should be allowed to withdraw from representing Appellant on appeal or whether good cause exists to relieve Timothy A. Hootman of his duties as Appellant's counsel;
(3) if retained counsel is allowed to withdraw or good cause exists, enter a written order granting the motion or relieving Timothy A. Hootman of his duties as Appellant's counsel and listing the basis for and finding of good cause;
(4) if retained counsel is allowed to withdraw, determine whether Appellant is indigent;
(5) if Appellant is indigent, appoint appellate counsel at no expense to Appellant;
(6) if Appellant is not indigent,
a. determine whether he has retained substitute counsel and, if so, obtain the name, address, and telephone number of substitute counsel;
b. if Appellant has not retained counsel:
i. admonish Appellant of the dangers and disadvantages of self-representation, and determine whether Appellant has knowingly and intelligently waived his right to counsel and, if so, obtain a written waiver of the right to counsel; or
ii. if Appellant does not wish to proceed pro se, provide a deadline by which Appellant must hire an attorney, which shall be no later than 30 days after the date of the hearing.
(7) if the motion to withdraw is not granted and good cause does not exist to relieve Appellant's retained counsel, 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.See Tex. Code Crim. Proc. arts. 1.051, 26.04; see also Meza v. State, 206 S.W.3d 684, 688 (Tex. Crim. App. 2006) ("Especially given the elaborate mechanism for making court appointments for indigent criminal defendants that is now in place under Article 26.04, it is fitting that a case should be abated to the trial court for substitution of counsel . . . .").
The trial court shall have a court reporter or court recorder record the hearing. The trial court clerk is directed to file a supplemental clerk's record containing the trial court's findings and recommendations with this Court no later than 25 days from the date of this order. See Tex. R. App. P. 34.5(c). The court reporter is directed to file a supplemental reporter's record of the hearing no later than 30 days from the date of this order. See Tex. R. App. P. 34.6(d). If the hearing is conducted by video teleconference, an electronic copy of the hearing shall be filed in this Court no later than 30 days from 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 supplemental reporter's record, compliant with our Order, are filed with the Clerk of this Court.
It is so ORDERED.