Abdussamed Kose v. State ( 2019 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Abdussamed Kose v. The State of Texas
Appellate case number: 01-19-00402-CR
Trial court case number: 1462693
Trial court: 351st District Court
The complete record was filed in the above-referenced appeals on August 29, 2019.
Appellant’s brief was therefore due on September 30, 2019. On October 3, 2019, the Clerk
of this Court notified appellant that a brief had not yet been filed and required that a
response be filed within 10 days. Nevertheless, appellant’s retained counsel, Mark W.
Bennett, has neither filed a brief on appellant’s behalf nor responded to the late-brief notice.
We therefore abate the 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, Mark W. Bennett, 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
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 the appeal;
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.
(2) if appellant does wish to prosecute the appeal, determine whether counsel Mark
W. Bennett has abandoned the appeal;
(3) if counsel Mark W. Bennett has not abandoned the appeal:
a. inquire of counsel the reasons, if any, that he has failed to file a brief
on appellant’s behalf;
b. determine whether appellant has paid counsel’s fee for preparing an
appellate brief and determine whether appellant has made any other
necessary arrangements for filing a brief; and
c. set a date certain when appellant’s brief is due, regardless of whether
this Court has yet reinstated the appeal and no later than 30 days from
the date of the hearing;
(4) if Mark W. Bennett has abandoned this appeal, enter a written order relieving
Mark W. Bennett of his 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 now 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 brief is
due, regardless of whether this Court has yet reinstated the appeal
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 an 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); 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); Webb v. State, 533 S.W.2d 780, 784, 785 (Tex. Crim.
App. 1976) (stating that criminal defendant may not manipulate right to choose counsel so
as to interfere with fair administration of justice; “The trial court should therefore admonish
an accused who desires to represent himself regarding the wisdom and practical
consequences of that choice.”); Carter v. State, No. 01-95-00977-CR, 1997 WL 184385,
*1 (Tex. App.—Houston [1st Dist.] April 17, 1997, pet. ref’d) (not designated for
publication) (“Thus, the public interest in the fair and orderly administration of justice may
be greater than an accused’s right to have counsel of his own choice.”); 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 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
this order. The court reporter is directed to file the reporter’s record of the hearing within
30 days of the date of this order. If the hearing is conducted by video teleconference, a
certified video recording of the hearing shall also be filed in this Court within 30 days of
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 the reporter’s record are filed in this Court. 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/ Sherry Radack_____
 Acting individually  Acting for the Court
Date: ____December 10, 2019__