From Casetext: Smarter Legal Research

Perry v. State

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
Oct 20, 2020
Appellate case number: 01-19-00784-CR (Tex. App. Oct. 20, 2020)

Opinion

Appellate case number: 01-19-00784-CR

10-20-2020

Melissa Perry v. The State of Texas


ORDER OF ABATEMENT Trial court case number: 1577602 Trial court: County Criminal Court at Law No. 9 of Tarrant County

Appellant's retained counsel, Bethel T. Zahaie, has not filed a brief on appellant's behalf. Appellant's brief was due on September 10, 2020. See TEX. R. APP. P. 38.6(a). On September 15, 2020, the Clerk of this Court notified appellant's counsel that a brief had not been filed and requested a response no later than September 25, 2020. A response has not been received to the Clerk's notice, and a brief has not been filed.

Pursuant to Texas Rule of Appellate Procedure 38.8, we abate the appeal and remand the case for the trial court to immediately conduct a hearing at which a representative of the Tarrant County District Attorney's Office, appellant's counsel, Bethel T. Zahaie, and appellant shall be present. See TEX. R. APP. 38.8(b)(2). The trial court shall have a court reporter record the hearing.

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 her request, appellant and her 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 to:

(1) determine whether appellant wishes to prosecute the appeal;
(2) determine whether counsel, Bethel T. Zahaie, has abandoned the appeal;
(3) if counsel has not abandoned the appeal, inquire of counsel the reasons, if any, that she has failed to file a brief and set a date by which counsel will file a brief, not later than 30 days from the date of the hearing.
(4) if counsel has abandoned this appeal, enter an order relieving her of her duties as appellant's counsel, including in the order the basis for a finding of abandonment, and determine whether appellant is indigent; and:
(a) if indigent, appoint new appellate counsel at no expense to appellant and set a date by which counsel will file a brief, no later than 30 days from the date of the hearing; or
(b) if not indigent, admonish appellant of the dangers and disadvantages of self-representation and
i. determine whether appellant is knowingly and intelligently waiving his right to counsel and, if so, obtain a written waiver of the right to counsel and set a date by which the brief is due, no later than 30 days from the date of the hearing; or,
ii. if appellant does not wish to proceed pro se, set a date by which appellant must hire an attorney, 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, separate and apart from any docket sheet notations.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (d)(1), (f), 26.04(j)(2); TEX. R. APP. P. 38.8(b); cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g).

The trial court clerk is directed to file a supplemental clerk's record containing the trial court's order, findings, and recommendations with this Court no later than 30 days from the date of this order. The court reporter is directed to file the reporter's record of the hearing 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 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/ Terry Adams

[v] Acting individually [ ] Acting for the Court Date: October 20, 2020


Summaries of

Perry v. State

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
Oct 20, 2020
Appellate case number: 01-19-00784-CR (Tex. App. Oct. 20, 2020)
Case details for

Perry v. State

Case Details

Full title:Melissa Perry v. The State of Texas

Court:COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

Date published: Oct 20, 2020

Citations

Appellate case number: 01-19-00784-CR (Tex. App. Oct. 20, 2020)