Noe Jose Cervantes v. State ( 2015 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Noe Jose Cervantes v. The State of Texas
Appellate case number: 01-14-00875-CR
Trial court case number: 1388906
Trial court: 263rd District Court of Harris County
The time for appellant to file a brief has passed and no response has been made to our
order of March 18, 2015 requiring a brief to be filed by April 18, 2015.
As such, we must abate this appeal and remand the case to the trial court for a hearing at
which appellant and trial counsel shall be present in person. 1 The court coordinator of the trial
court shall set a date for said hearing and notify the parties, including appellant. We direct the
trial court to make appropriate written findings of fact and conclusions of law and to execute any
necessary orders on these issues:
1) Whether appellant still wishes to pursue this appeal;
2) If so, whether appointed counsel Joe Wells has abandoned the appeal and should
be allowed to withdraw;
3) If Joe Wells is permitted to continue, set a date certain (in no event more than 30
days from the date of the abatement hearing) by which Wells must file his client’s
brief, or, if Wells is permitted to withdraw,
4) Whether appellant is now indigent and entitled to appointed counsel; and, if
indigent,
a. appoint counsel on appeal, and
b. order the court reporter to file the reporter’s record with this Court at no
cost to appellant;
5) If appellant is not indigent:
1 If appellant is now incarcerated, he may appear by closed 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 between the trial court, appellant, and any
attorneys representing the State or appellant. On 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.
a. whether he has retained an attorney to file a brief, and, if so, obtain the
name, address, and telephone number of retained counsel;
b. if appellant has not retained counsel, the trial court shall admonish
appellant of the dangers and disadvantages of self-representation, and
i. determine whether appellant is knowingly and intelligently
waiving his right to counsel; or,
ii. if appellant does not wish to proceed pro se, provide a deadline by
which appellant must hire an attorney.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (f); Oliver v. State, 872 S.W.2d 713, 716 (Tex.
Crim. App. 1994); Minjares v. State, 577 S.W.2d 222, 224 (Tex. Crim. App. 1978); cf. TEX.
CODE CRIM. PROC. ANN. art. 1.051(g).
The trial court shall have a court reporter, or court recorder, record the hearing and file
the reporter’s record with the Court no later than 30 days from the date of this order.
Additionally, the trial court’s findings and recommendations and any orders issued pursuant to
this hearing shall be included in a supplemental clerk’s record and filed in this Court no later
than 30 days from the date of this order. If the hearing is conducted by video teleconference, a
certified 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 of the hearing are filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Harvey Brown
 Acting individually  Acting for the Court
Date: May 19, 2015