Opinion
01-23-00441-CR
02-13-2024
Albert Oum Ndjock v. The State of Texas
458th District Court of Fort Bend County Trial court case number 21-DCR-096170
ORDER OF ABATEMENT
Julie Countiss Judge
Appellant, Albert Oum Ndjock, filed a notice of appeal from the trial court's March 14, 2023 judgment. Appellant's brief was due to be filed by January 2, 2024. See Tex. R. App. P. 38.6(a). However, no brief was filed, and on January 23, 2024, appellant was notified that unless he filed a brief or motion to extend time to file a brief within ten days, the Court would be required to abate the appeal and order the trial court to conduct a hearing to determine whether appellant wishes to prosecute his appeal, and if so, whether his court-appointed counsel had abandoned the appeal. See Tex. R. App. P. 38.8(b)(2), (3). Appellant did not respond to this Court's notice and has not filed a brief.
Accordingly, we abate the appeal and remand the case to the trial court for the trial court to immediately conduct a hearing at which a representative of the Fort Bend County District Attorney's Office and appellant's appointed counsel, David M. Ryan, shall be present. Tex.R.App.P. 38.8(b)(2). Appellant shall also be present for the hearing in person or, if he is incarcerated, at the trial court's discretion, 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 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.
The trial court is directed to:
(1) determine whether appellant wishes to prosecute the appeal;
(2) if appellant wishes to prosecute the appeal, determine whether good cause exists
to relieve David M. Ryan of his duties as appellant's counsel;
(3) if good cause exists, enter a written order relieving David M. Ryan 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) if good cause does not exist, set a date 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;
(5) make any other findings and recommendations the trial court deems appropriate; and
(6) enter written findings of fact, conclusions of law, and recommendations as to these issues.See Tex. Code Crim. Proc. Ann. art. 1.051(a), (c), (d)(1), 26.04(j)(2); Tex.R.App.P. 38.8(b).
On December 20, 2023, appellant filed a letter with the Court, stating that his appointed counsel had failed to contact him or respond to appellant's attempts to contact appointed counsel since counsel was appointed by the trial court. Appellant has filed a similar letter in the trial court.
The trial court shall have a court reporter record the hearing and file the reporter's record with this Court within 30 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 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 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.