Opinion
Appellate case number: 01-13-01004-CR
08-14-2014
Brian Victorian v. The State of Texas
ORDER OF ABATEMENT Trial court case number: 1363644 Trial court: 182nd District Court of Harris County
The time for appellant to file his brief has passed. Appointed counsel for appellant, Kurt B. Wentz, filed a request for extension of time to file appellant's brief on April 23, 2014. We granted that motion, extending the deadline to file appellant's brief to June 27, 2014. To date, no brief or further request for extension has been filed.
As such, we must abate this appeal and remand the case to the trial court for a hearing at which appellant and Kurt B. Wentz shall be present in person. The court coordinator of the trial court shall set a date for said hearing and notify the parties, including appellant. We direct the trial court to make appropriate written findings of fact and conclusions of law and to execute any necessary orders on these issues:
If appellant is now incarcerated, he may appear by closed 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 request, 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.
1) Whether appellant still wishes to pursue this appeal;See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (f); Oliver v. State, 872 S.W.2d 713, 716 (Tex. Crim. App. 1994); Minjares v. State, 577 S.W.2d 222, 224 (Tex. Crim. App. 1978); cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g).
2) If so, whether Kurt B. Wentz has abandoned this appeal and should be allowed to withdraw;
3) Whether appellant is now indigent and entitled to appointed counsel; and, if indigent, appoint new counsel on appeal, and
4) If appellant is not indigent:
a. whether he has retained an attorney to file a brief, and, if so, obtain the name, address, and telephone number of retained counsel;
b. if appellant has not retained counsel, the trial court shall admonish appellant of the dangers and disadvantages of self-representation, and
i. determine whether appellant is knowingly and intelligently waiving his right to counsel; or,
ii. if appellant does not wish to proceed pro se, provide a deadline by which appellant must hire an attorney.
The trial court shall have a court reporter, or court recorder, record the hearing and file the reporter's record with the Court no later than 30 days from the date of this order. Additionally, the trial court's findings and recommendations and any orders issued pursuant to this hearing shall be included in a supplemental clerk's record and filed in this Court no later than 30 days from the date of this order. If the hearing is conducted by video teleconference, a certified 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 reporter's record of the hearing are filed in this Court.
It is so ORDERED. Judge's signature: /s/ Harvey Brown
[v] Acting individually [ ] Acting for the Court
Date: August 14, 2014