Opinion
Appellate case number: 01-17-00354-CR
06-20-2017
ORDER OF ABATEMENT Trial court case number: 993419 Trial court: 209th District Court of Harris County
The Clerk of the Court has examined the clerk's record and has found that it does not comport with the Texas Rules of Appellate Procedure, in that it does not include a copy of the trial court's certification of appellant's right of appeal. See TEX. R. APP. P. 25.2(d), 34.5(a)(12). This order constitutes notice to all parties of the defective certification. See TEX. R. APP. P. 37.1.
Further, appellant was represented in the trial court by appointed counsel, Robert Wicoff, and the record contains no indication that appellant's counsel moved to withdraw or was permitted to withdraw. Nevertheless, appellant's notice of appeal was filed pro se and no attorney has appeared in this Court on appellant's behalf. Appellant has also filed a motion to appoint appellate counsel.
Pursuant to the Code of Criminal Procedure, Robert Wicoff continues to represent appellant, because he has not been discharged by the trial court and the appeal has not been exhausted. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (West Supp. 2016) (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"). Further, if Robert Wicoff was permitted to withdraw, appellant is entitled to a new court-appointed counsel, unless he, 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 id. art. 26.04(p) (West Supp. 2016); see also TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1) (West Supp. 2016); 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). Moreover, a "convicted person" is entitled to counsel during a proceeding under Texas Code of Criminal Procedure, Chapter 64 (Motion for Forensic DNA Testing), if the person informs the court that he wishes to submit a motion under Chapter 64, the court finds reasonable grounds for a motion to be filed, and the court determines that the person is indigent. TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (West Supp. 2016).
We therefore abate this appeal and remand 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 trial counsel, Robert Wicoff, 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 that provides for a simultaneous compressed full motion video and interactive communication of image and sound.
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 a certification of appellant's right to appeal indicating whether or not appellant has the right of appeal;
2) Determine whether appellant still wishes to pursue this appeal;
3) If appellant wishes to pursue this appeal, determine whether appellant's counsel, Robert Wicoff, intends to represent appellant on appeal or whether counsel should be permitted to withdraw;
4) If counsel is permitted to withdraw, enter a written order granting his request to withdraw and determine whether appellant is currently indigent or whether there has been a material change in his financial circumstances since the trial court found him to be indigent such that he is no longer indigent;
5) If appellant is either currently indigent or there has not been a material change in his financial circumstances, appoint substitute appellate counsel at no expense to appellant;
6) If appellant is not currently indigent and there has been a material change in his financial circumstances:
a. Enter written findings of fact establishing the material change in appellant's financial circumstances;
b. Admonish appellant regarding the dangers and disadvantages of self-representation, and
i. If appellant wishes to knowingly and intelligently waive his right to counsel, 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 from the date of the hearing;
7) 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.
8) Enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.
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, recommendations, and orders with this Court within 30 days of the date of this order. The court reporter is directed to file the reporter's record of the hearing within 30 days of the date of this order. If the hearing is conducted by video teleconference, a certified recording of the hearing shall also be filed in this Court within 30 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 records that comply with our order are filed with the Clerk of this Court. The court coordinator of the trial court shall set a hearing date and notify the parties.
It is so ORDERED. Judge's signature: /s/ Sherry Radack
[v] Acting individually [ ] Acting for the Court Date: June 20, 2017