Michael Dixon v. State ( 2019 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Michael Dixon v. The State of Texas
Appellate case number: 01-18-00948-CR
Trial court case number: 17487
Trial court: 21st District Court of Washington County
The appellate record in this appeal was originally due on January 17, 2019. See
TEX. R. APP. P. 34.1, 35.2(b). On January 22, 2019, the Clerk of this Court notified
appellant that the trial court clerk had informed the Court that appellant had not made
payment arrangements for preparation and filing of the clerk’s record.1 See TEX. R. APP.
P. 35.3(a). The Clerk further notified appellant that unless he provided written evidence
that he had paid, or made arrangements to pay, for the clerk’s record, or provided proof
that he is entitled to proceed without payment of costs, the Court might dismiss the
appeal for want of prosecution. See TEX. R. APP. P. 37.3(b). Neither appellant nor his
counsel responded. And, a clerk’s record has not been filed in this appeal.
It appears that appellant’s counsel, Scottie Allen, has been placed on active
suspension from the practice of law for a period of six months beginning on April 1,
2019. Therefore, appellant currently is not represented by counsel in this appeal.
Accordingly, we abate the appeal and remand the cause to the trial court to
conduct a hearing at which a representative of the Washington County District Attorney’s
Office shall be present. See Martinez v. State, 534 S.W.2d 693, 694 (Tex. Crim. App.
1976). 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.
1
On January 22, 2019, the Clerk of this Court also sent notice to appellant regarding the
failure to pay, or make arrangements to pay, for preparation of the reporter’s record. See
TEX. R. APP. P. 35.3(b), 37.3(c). Appellant has not responded to that notice, and a
reporter’s record has not been filed.
We direct the trial court to:
1) Determine whether appellant still wishes to pursue this appeal;
2) Determine whether appellant is now indigent, and
a. if appellant is indigent, (i) appoint substitute appellate counsel at no cost
to appellant and (ii) order the trial court clerk and court reporter to file
the clerk’s record and reporter’s record in this case within 30 days of
the date of the hearing, at no cost to appellant;
b. if appellant is not indigent, admonish appellant regarding the dangers
and disadvantages of self-representation, and:
i. determine whether appellant is knowingly and intelligently waiving
his right to counsel and (A) if so, obtain a written waiver of the right
to counsel, or (B) if appellant does not wish to proceed pro se,
provide a deadline of no more than 20 days from the date of the
hearing by which appellant must hire substitute counsel; and
ii. provide a deadline of no more than 30 days from the date of the
hearing by which appellant must provide written evidence
demonstrating payment of the clerk’s record and reporter’s record
and further notify appellant that failure to provide such evidence
may result in dismissal of his appeal for want of prosecution or
consideration of his appeal without a reporter’s record; and
3) Make any other findings and recommendations the trial court deems
appropriate.
See TEX. CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f), 26.04; TEX. R. APP. P. 20.2; see
generally Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003) (explaining
other factors relating to fair and orderly administration of justice may overcome
presumption in favor of right to choice of counsel).
The trial court clerk is directed to file a supplemental clerk’s record containing
trial court’s findings and recommendations and any orders issued pursuant to the hearing
with this Court no later than 30 days from the date of this order. The court reporter is
directed to file a reporter’s record of the hearing and file the reporter’s record 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/ Russell Lloyd
 Acting individually  Acting for the Court
Date: __April 30, 2019___