Kelor King v. State ( 2015 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Kelor King v. The State of Texas
Appellate case number: 01-15-00237-CR
Trial court case number: 1437649
Trial court: 262nd District Court of Harris County
On September 30, 2014, appellant, Kelor King, pleaded guilty to the second-
degree felony offense of assault of family member – second offender and impeding
breathing, for which the trial court placed him on deferred adjudication community
supervision for six years. See TEX. PENAL CODE ANN. §§ 12.33(a), 22.01(b-1), 42.12, §
5(a) (West Supp. 2014). On February 18, 2015, after appellant pleaded true to the
allegations that he had violated the terms and conditions of his probation in the State’s
motion to adjudicate his guilt, the trial court assessed appellant’s punishment at five
years’ confinement. See id. at § 42.12, § 5(b). The trial court certified appellant’s right
of appeal because this was not a plea-bargain case. See TEX. R. APP. P. 25.2(a)(2)(B).
On February 25, 2015, appellant timely filed a pro se notice of appeal from the
judgment adjudicating guilt, and on March 2, 2015, the trial court appointed Keisha
Smith to represent appellant. See TEX. R. APP. P. 26.2(a)(1). On April 24, 2015, after the
reporter’s record was filed, completing the appellate record, appellant’s brief deadline
was set for May 26, 2015. See id. at 38.8(a)(2).
On June 12, 2015, the Clerk of this Court notified appellant’s counsel, Ms. Smith,
that a brief had not been timely filed and that if this Court did not receive appellant’s
brief or an extension motion within ten days of that notice, it may order the trial court to
conduct the late-brief abatement hearing as required by Texas Rule of Appellate
Procedure 38.8(b)(2). Counsel has not timely filed a brief or a motion.
Instead, on July 27, 2015, appellant filed a pro se request to withdraw his appeal,
which was not signed by his counsel. On August 6, 2015, the Court construed appellant’s
request as a motion to dismiss the appeal, and dismissed it without prejudice to refiling
with his counsel’s signature. See TEX. R. APP. P. 42.2(a). Because the clerk’s record,
filed on April 17, 2015, did not contain any order showing that Ms. Smith had been
discharged by the trial court, she continues to represent appellant. See TEX. CODE CRIM.
PROC. ANN. art. 26.04(j)(2) (West Supp. 2014).
On September 14, 2015, appellant filed a second pro se request to withdraw his
appeal, which again was not signed by his counsel. The Court again construes
appellant’s second request as a second motion to dismiss the appeal, and dismisses it
without prejudice to refiling with his counsel’s signature. See TEX. R. APP. P. 42.2(a).
Accordingly, we sua sponte abate this appeal and remand the cause 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, Keisha Smith, shall be present. See
TEX. R. APP. P. 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. We direct the trial
court to:
1) make a finding on whether appellant wishes to prosecute this appeal;
2) if appellant does not wish to prosecute the appeal, provide a final deadline
by which both appellant’s counsel and appellant sign a written motion to
dismiss that complies with Texas Rule of Appellate Procedure 42.2(a), and
counsel files it with the Clerk of this Court, which shall be no more than 30
days from the date of the hearing;
3) if appellant does wish to prosecute this appeal, determine whether Keisha
Smith has abandoned the appeal;
4) if counsel Keisha Smith has not abandoned the appeal:
a. inquire of counsel the reasons, if any, that she has failed to file a
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 appellant’s request, 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.
brief on appellant’s behalf; and
b. set a date 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;
5) if Keisha Smith has abandoned this appeal, enter a written order relieving
Keisha Smith 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 still 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
ii. if so, obtain a written waiver of the right to counsel and
provide appellant with a copy of a written order setting a date
when appellant’s pro se 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
iii. if appellant is not indigent and does not wish to proceed pro
se, provide a deadline by which appellant must hire an
attorney, which must be no more than 30 days from the date
of the hearing;
6) make any other findings and recommendations the trial court deems
appropriate; and
7) 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 Supp. 2014); TEX. R.
APP. P. 38.8(b); Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003); Webb v.
State, 533 S.W.2d 780, 784, 785 (Tex. Crim. App. 1976); cf. TEX. CODE CRIM. PROC.
ANN. art. 1.051(g), 26.04(j)(2).
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 30 days from the
date of this order. See TEX. R. APP. P. 34.5(c). The court reporter is directed to file the
supplemental 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, a certified video recording of
the hearing shall also be filed in this Court no later than 30 days from the date of this
order.
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 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.
If appellant files a motion to dismiss which complies with Texas Rule of Appellate
Procedure 42.2(a) within 15 days of the date of this order, together with a motion
requesting that we reinstate the appeal, we may withdraw this order and reinstate the
appeal.
It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes

Date: September 22, 2015