Adrian Barnes v. State ( 2019 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF CONTINUING ABATEMENT
Appellate case name: Adrian Barnes v. The State of Texas
Appellate case number: 01-19-00630-CR
Trial court case number: 1494270
Trial court: 290th District Court of Harris County
Appellant, Adrian Barnes, has filed a notice of appeal of the trial court’s judgment signed
on June 14, 2019, adjudicating appellant guilty of the felony offense of burglary of a habitation
and assessing his punishment at confinement for five years. Appellant’s retained counsel,
Alexander J. Houthuijzen, has not filed a brief on appellant’s behalf. Appellant’s brief was due
on September 30, 2019. See TEX. R. APP. P. 38.6(a). On October 3, 2019, the Clerk of this Court
notified appellant’s counsel that a brief had not been filed and, unless appellant filed a motion
requesting an extension of time along with appellant’s brief or a motion to extend time to file
appellant’s brief by October 14, 2019, 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). Counsel did not file
a brief on appellant’s behalf.
On November 21, 2019, the Court abated appellant’s appeal and remanded the case to the
trial court to immediately conduct a hearing at which a representative of the Harris County District
Attorney’s Office and appellant’s counsel, Alexander J. Houthuijzen, were to be present. See TEX.
R. APP. 38.8(b)(2). Appellant was also to be present for the hearing in person or, if appellant was
incarcerated, at the trial court’s discretion, appellant could participate in the hearing by
closed-circuit video teleconferencing.1 Further, the trial court was to have a court reporter record
the hearing. And the trial court was directed to:
(1) make a finding on whether appellant wished to prosecute the appeal;
(2) if appellant wished to prosecute the appeal, determine whether appellant’s counsel,
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Any such teleconference must have used a closed-circuit video teleconferencing system
that provided 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 appellant’s request, appellant and his counsel were
to be able to communicate privately without being recorded or heard by the trial court or
the attorney representing the State.
Alexander J. Houthuijzen, had abandoned the appeal;
(3) if appellant’s counsel, Alexander J. Houthuijzen, had not abandoned the appeal:
a. inquire of counsel the reasons, if any, that he had failed to file a brief on
appellant’s behalf;
b. determine whether appellant had paid counsel’s fee for preparing an
appellate brief and determine whether appellant had made any other
necessary arrangements for filing a brief; and
c. set a date when appellant’s brief was to be due, regardless of whether this
Court had yet reinstated the appeal and no later than 30 days from the date
of the trial court’s hearing;
(4) if appellant’s counsel, Alexander J. Houthuijzen, had abandoned this appeal, enter a
written order relieving him 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 had knowingly and intelligently waived his
right to counsel and, if so, obtain a written waiver of the right to counsel
and set a date when appellant’s brief was to be due, regardless of
whether this Court had yet reinstated the appeal and no later than 30
days from the date of the trial court’s hearing; or,
ii. if appellant did not wish to proceed pro se, provide a deadline by which
appellant was to hire an attorney, which must be no more than 30 days
from the date of the hearing;
(5) make any other findings and recommendations that the trial court deemed 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); see also
Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003) (stating 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).
We then directed the trial court clerk to file a supplemental clerk’s record containing the
trial court’s findings and recommendations with this Court no later than 30 days from the date of
the Court’s November 21, 2019 order. The court reporter was also directed to file the reporter’s
record of the hearing no later than 30 days from the date of the Court’s November 21, 2019 order.
And if the hearing was conducted by video teleconference, a certified video recording of the
hearing was to be filed in this Court no later than 30 days from the date of the November 21, 2019
order.
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On December 2, 2019, appellant’s counsel, Alexander J. Houthuijzen, filed an appellant’s
brief in Ex parte Adrian Barnes, No. 01-19-00644-CR—appellant’s separate appeal from the trial
court’s denial of his application for a writ of habeas corpus. Although counsel also listed appellate
cause number 01-19-00630-CR on the front cover of the brief, the issues and arguments raised in
the brief solely relate to appellant’s separate appeal from the trial court’s denial of his application
for a writ of habeas corpus.
Given that the brief filed by appellant’s counsel on December 2, 2019 does not raise any
issues or present any argument to support the reversal of the trial court’s judgment signed on June
14, 2019, which adjudicated appellant guilty of the felony offense of burglary of a habitation and
assessed his punishment at confinement for five years, we do not consider the brief filed on
December 2, 2019 to apply to appellate cause number 01-19-00630-CR. We, therefore, strike the
reference to appellate cause number 01-19-00630-CR from the front cover of appellant’s brief
filed on December 2, 2019 in Ex parte Adrian Barnes, No. 01-19-00644-CR. Because appellant’s
counsel has still not filed a brief on appellant’s behalf in appellate cause number
01-19-00630-CR, we continue to direct the trial court to hold the aforementioned hearing
discussed above.
We also continue to direct the trial court clerk to file a supplemental clerk’s record
containing the trial court’s findings and recommendations with this Court no later than December
23, 2019. The court reporter is also directed to file the reporter’s record of the hearing no later
than no later than December 23, 2019. And if the hearing is conducted by video teleconference,
a certified video recording of the hearing shall also be filed in this Court no later than no later
than December 23, 2019.
The appeal remains 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/ Julie Countiss______
 Acting individually  Acting for the Court
Date: __December 5, 2019___
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