Demetrick James v. State ( 2018 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Demetrick James v. The State of Texas
Appellate case number: 01-17-00300-CR
Trial court case number: 1510754
Trial court: 262nd District Court of Harris County
This Court’s January 18, 2018 Order on Motion had granted appellant’s first
motion for an extension of time to file appellant’s brief until February 14, 2018. That
Order had warned appellant’s counsel that no further extensions would be granted, due to
the total length of time requested, and that this case would be abated for a hearing
pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), if the brief was not filed by
February 14, 2018. Nevertheless, appellant’s retained counsel, Natalie Schultz, has not
timely filed a brief or an extension request on appellant’s behalf.
We therefore sua sponte abate this appeal and remand for the trial court to
immediately conduct a hearing at which a representative of the Harris County District
Attorney’s Office and appellant’s counsel, Natalie Schultz, shall be present. TEX. R. APP.
38.8(b)(2). 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
closed-circuit video teleconferencing.1
1
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, 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.
The trial court shall have a court reporter record the hearing. The trial court is
directed to:
(1) make a finding on whether appellant wishes to prosecute this appeal;
(2) if appellant does wish to prosecute this appeal, determine whether counsel
Natalie Schultz has abandoned this appeal;
(3) if counsel Natalie Schultz has not abandoned this appeal:
a. inquire of counsel the reasons, if any, that she has failed to file a
brief on appellant’s behalf; and
b. set a date certain when appellant’s brief will be due, regardless of
whether this Court has yet reinstated this appeal and no later than 30
days from the date of the hearing;
(4) if Natalie Schultz has abandoned this appeal, enter a written order relieving
Natalie Schultz of her duties as appellant’s counsel, including in the order the
basis for the finding of abandonment, determine whether appellant is indigent,
and:
a. if appellant is indigent, appoint substitute appellate counsel at no
expense to appellant;
b. if appellant is 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 certain when appellant’s briefs
are due, regardless of whether this Court has yet reinstated these
appeals and no later than 30 days from the date of the hearing; or,
ii. if appellant does not wish to proceed pro se, provide a deadline
by which appellant must hire a new appellate attorney;
(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) (West 2005); TEX. R. APP. P.
38.8(b); Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003) (stating that
presumption in favor of right to choice of counsel may be overridden by other factors
relating to fair and orderly administration of justice); cf. TEX. CODE CRIM. PROC. ANN.
art. 1.051(g) (requiring trial court to advise defendant of dangers and disadvantages of
self-representation prior to proceeding to trial), 26.04(j)(2) (authorizing trial court to
order appointed counsel to withdraw after finding of good cause is entered on record).
The court coordinator of the trial court shall set a hearing date no later than 30
days from the date of this order and notify the parties and the Clerk of this Court of
such date. 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 the hearing. The court reporter is directed to file the reporter’s record of the
hearing within 30 days of the date of the hearing. If the hearing is conducted by video
teleconference and electronically recorded, a certified video recording of the hearing shall
also be filed in this Court within 30 days of the date of this hearing.
If counsel Natalie Schultz files an extension motion and brief on appellant’s behalf
in this Court and a copy of such brief in the trial court, which brief complies with Texas
Rule of Appellate Procedure 38.1, no later than 10 days from the date of this Order,
together with a motion requesting that we withdraw this Order of Abatement, this Court
may reconsider and withdraw this Order and reinstate the appeal.
This appeal is abated, treated as a closed case, and removed from this Court’s
active docket. This appeal will be reinstated on this Court’s active docket when the
supplemental clerk’s record and the supplemental reporter’s record, if any, that comply
with this Order, are filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley
 Acting individually  Acting for the Court
Date: February 27, 2018