Devren Keith Byerly v. State ( 2015 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Devren Byerly v. The State of Texas
Appellate case number: 01-15-00038-CR
Trial court case number: 302287
Trial court: County Court at Law No. 3 of Jefferson County
Proceeding pro se, appellant timely filed a notice of appeal of a judgment of conviction
for the misdemeanor offense of terroristic threat. See TEX. PENAL CODE ANN. § 22.07 (West
2011). The clerk’s record was filed on December 29, 2014. On February 5, 2015, the Clerk of
this Court notified appellant that the court reporter had informed the Court that he had not made
arrangements to pay for the record and this Court’s records indicated that he was not appealing
as an indigent, and the Court might consider the appeal without a reporter’s record. When he did
not respond, we notified appellant that the Court would consider the appeal on the record filed in
this Court and ordered him to file a brief no later than September 10, 2015. On September 21,
2015, the Clerk of this Court notified appellant that his brief was late and, absent a satisfactory
response within 10 days, the Court might be required to order the trial court to conduct a hearing
pursuant to rule 38.8. See TEX. R. APP. P. 38.8(b)(2), (3). Appellant has not responded.
Rule 38.8(b) provides that in a criminal case an appellant’s failure to file a brief does not
authorize dismissal of the appeal, or consideration of the appeal without briefs unless the trial
court has found that the appellant (1) no longer desires to prosecute the appeal, or (2) is not
indigent but has not made the necessary arrangements for filing a brief. TEX. R. APP. P.
38.8(b)(1), (4); see, e.g., Derutte v. State, No. 09-14-00228-CR, 2015 WL 1535693, at *1 (Tex.
App.—Beaumont Apr. 1, 2015, no pet.) (mem. op., not designated for publication); Ayala v.
State, No. 01-13-00393-CR, 2015 WL 161788, at *1 (Tex. App.—Houston [1st Dist.] Jan. 13,
2015, no pet.) (mem. op., not designated for publication). Accordingly, we abate this appeal and
remand the cause to the trial court for further proceedings pursuant to rule 38.8(b).
The trial court shall immediately conduct a hearing at which the appellant and a
representative of the Jefferson County District Attorney’s Office shall be present in person.1 The
1 If he is now incarcerated, appellant may appear by closed-circuit 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
court coordinator for the trial court shall set a date for the hearing and notify the parties,
including appellant. We direct the trial court to make appropriate written findings of fact and
conclusions of law and sign any necessary orders on these issues:
1) Whether appellant wishes to pursue this appeal;
2) If so, whether appellant is now indigent and entitled to appointed counsel; and, if
indigent:
a. appoint appellate counsel at no expense to appellant; and
b. order the court reporter to file the reporter’s record with this Court at no
cost to appellant;
3) If appellant is not indigent:
a. admonish appellant regarding the dangers and disadvantages of
self-representation, and determine whether he is knowingly and
intelligently waived his right to counsel and, 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 by which
he must hire an attorney, which shall be no later than 30 days after the date
of the hearing.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f), (g), 26.04; TEX. R. APP. P. 20.2;
Goffney v. State, 843 S.W.2d 583, 584–85 (Tex. Crim. App. 1992); Hawkins v. State, 613
S.W.2d 720, 722–23 (Tex. Crim. App. 1981).
The trial court shall have a court reporter, or court recorder, record the hearing. The trial
court clerk is directed to file a supplemental clerk’s record containing the trial court’s findings
and recommendations with this Court no later than 25 days from the date of this order. See TEX.
R. APP. P. 34.5(c). 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. If the hearing is conducted by video
teleconference, an 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 that comply with our order are filed with the Clerk of this
Court. The court coordinator of the trial court shall set a hearing date and notify the parties.
It is so ORDERED.
Judge’s signature: /s/ Russell Lloyd
 Acting individually  Acting for the Court
Date: December 8, 2015
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.