Opinion
Appellate case number: 01-14-00279-CR
04-26-2016
Allen Bernard Gims v. The State of Texas
ORDER OF ABATEMENT Trial court case number: 1262460 Trial court: 176th District Court of Harris County
Appellant, Allen Bernard Gims, was convicted of the offense of capital murder and sentenced to life imprisonment without the possibility of parole. The complete record was filed in the above-referenced appeal on September 11, 2014, making appellant's brief due on December 13, 2014. See TEX. R. APP. P. 38.6(a). After appellant, through appointed counsel, was granted multiple extensions to file his appellant's brief, this Court entered an order directing counsel to file his brief by March 9, 2015. On March 6, 2015, this Court granted counsel a final extension of time and ordered appellant's opening brief filed on or before March 20, 2015. On September 23, 2015, after appellant's counsel again failed to timely file a brief, the Clerk of this Court sent a notice that the time for filing appellant's brief had expired and requested a response within 10 days. Appellant's appointed counsel failed to respond and a brief has not been filed.
We abate the appeal and remand the cause to the trial court to conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's appointed counsel, Terrence A. Gaiser, shall be present. At the trial court's discretion, appellant may be present for the hearing in person or, if incarcerated, he 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, he 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) determine whether appellant still wishes to pursue this appeal;
2) if appellant wishes to pursue this appeal, determine whether good cause exists to relieve Terrence A. Gaiser of his duties as appellant's counsel, specifically addressing whether counsel's failure to file a brief after multiple extensions and over a year after the final extension ordered by this Court constitutes good cause for his removal;
a. if good cause exists to remove counsel, the trial court shall enter a written order relieving Terrence A. Gaiser of his duties as appellant's counsel, including in the order the basis for finding good cause for his removal, and appoint substitute appellate counsel, at no expense to appellant, who is available to begin work on this appeal immediately in light of the time that has already passed since the appellant's brief was due, with the understanding that the court of appeals does not intend to grant any further extensions to briefing deadlines;
b. if good cause does not exist to remove counsel, the trial court shall provide a final deadline by which Terrence A. Gaiser must file appellant's brief, which shall be no more than 30 days from the date of the hearing, with no further extensions to be granted;
3) enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations; andSee TEX. CODE CRIM. PROC. art. 1.051(a), (c), (d)(1), 26.04(j)(2), (p), (g) (West Supp. 2015); TEX. R. APP. P. 38.8(b); 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).
4) make any other findings and recommendations the trial court deems appropriate.
In this regard, the Clerk is directed to transmit to the trial court a copy of appellant's correspondence received and filed by this Court on October 9, 2015. --------
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: /s/ Michael Massengale
[×] Acting individually Date: April 26, 2016