Zachary Keith Hill v. State ( 2015 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Zachary Keith Hill v. The State of Texas
Appellate case number: 01-14-00945-CR
Trial court case number: 1281596
Trial court: 263rd Judicial District Court of Harris County
On March 3, 2015, this Court denied appellant’s motion for an extension of time
to file appellant’s brief without prejudice to refiling the motion after the clerk’s record
was filed. On March 13, 2015, the record in this appeal was completed with the filing of
the clerk’s record in this Court, and the Clerk of this Court sent out notice that appellant’s
brief was to be due within 30 days of the filing of the clerk’s record, or by April 13, 2015.
Because appellant did not timely file a brief by April 13, 2015, the Clerk of this Court
sent a late brief notice on April 27, 2015, notifying appellant’s retained counsel, Edward
Mathew Hennessy, that this case would be abated for a hearing pursuant to Texas Rule of
Appellate Procedure 38.8(b)(2), if either his brief or extension motion were not filed
within 10 days of that notice. Nevertheless, appellant’s counsel, Edward Mathew
Hennessy, has not timely filed a brief or extension request on appellant’s behalf.
We therefore sua sponte abate this 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, Edward Mathew Hennessy, 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
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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.
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 this appeal;
(2) if appellant does wish to prosecute this appeal, determine whether counsel
Edward Mathew Hennessy has abandoned this appeal;
(3) if counsel Edward Mathew Hennessy has not abandoned this appeal:
a. inquire of counsel the reasons, if any, that he has failed to file a brief
on appellant’s behalf; and
b. set a date certain when appellant’s brief will be due, regardless of
whether this Court has yet reinstated this appeal and no later than 30
days from the date of the hearing;
(4) if Edward Mathew Hennessy has abandoned this appeal, enter a written order
relieving Edward Mathew Hennessy 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 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 briefs
are due, regardless of whether this Court has yet reinstated these
appeals 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 a new appellate 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) (West Supp. 2014); 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); 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 court coordinator of the trial court shall set a hearing date no later than 30
days from the date of this order and notify the parties and the Clerk of this Court of such
date. The trial court clerk is directed to file a supplemental clerk’s record containing the
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trial court’s findings and recommendations with this Court within 30 days of the date of
the hearing. The court reporter is directed to file the reporter’s record of the hearing
within 30 days of the date of the hearing. If the hearing is conducted by video
teleconference and electronically recorded, a certified video recording of the hearing shall
also be filed in this Court within 30 days of the date of this hearing.
If Edward Mathew Hennessy files an extension motion and brief on appellant’s
behalf in this Court and a copy of such brief in the trial court, which brief complies with
Texas Rule of Appellate Procedure 38.1, no later than 10 days from the date of this
Order, together with a motion requesting that we withdraw this Order of Abatement, we
may reconsider and withdraw this Order and reinstate the appeal.
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, if any, that comply
with this Order, are filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Laura Carter Higley
 Acting individually  Acting for the Court
Date: May 28, 2015
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