Iririan Salinas v. State ( 2014 )


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  •                               COURT OF APPEALS FOR THE
    FIRST DISTRICT OF TEXAS AT HOUSTON
    ORDER OF ABATEMENT
    Appellate case name:        Iririan Salinas v. The State of Texas
    Appellate case number:      01-13-00552-CR
    Trial court case number:    1854915
    Trial court:                County Criminal Court at Law No. 14 of Harris County
    The complete record has been filed in the above-referenced appeals since July 9,
    2013. Appellant’s brief was therefore due on August 8, 2013. On August 16, 2013, 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. Appellant has neither responded to the notice nor
    filed a brief.
    Further, although appellant timely appealed on June 24, 2013, no attorney has
    appeared in this Court on appellant’s behalf and appellant has provided no documentation
    regarding his appellate representation. Appellant was represented by retained counsel in
    the trial court, but counsel did not sign the notice of appeal for appellant, who signed the
    notice himself, thereby indicating that counsel did not intend to represent appellant on
    appeal. See Whitehead v. State, 
    130 S.W.3d 866
    , 879 (Tex. Crim. App. 2004); Jones v.
    State, 
    98 S.W.3d 700
    , 703 (Tex. Crim. App. 2003). Nevertheless, if a retained trial
    counsel does not wish to continue to represent an appellant, counsel must file a motion to
    withdraw. See 
    Whitehead, 130 S.W.3d at 879
    . No motion to withdraw appears in the
    record. Nor does the record contain any indication that appellant has been admonished
    regarding the dangers and disadvantages of proceeding pro se or made an intelligent and
    voluntary waiver of the right to counsel on appeal. See TEX. CODE CRIM. PROC. ANN.
    art. 1.051(a), (f) (West Supp. 2013); Goffney v. State, 
    843 S.W.2d 583
    , 584–85 (Tex.
    Crim. App. 1992); Hawkins v. State, 
    613 S.W.2d 720
    , 722–23 (Tex. Crim. App. 1981);
    cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g). Therefore, the record is unclear as to
    whom, if anyone, represents appellant on appeal.
    Consequently, we abate the appeal and remand the cause to the trial court for
    further proceedings. The trial court shall immediately conduct a hearing at which a
    representative of the Harris County District Attorney’s Office and appellant’s trial
    counsel, Roy Abner, shall be present. 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
    We direct the trial court to:
    1) Determine whether appellant still wishes to pursue this appeal;
    2) Determine whether counsel, Roy Abner, intends to represent appellant on
    appeal;
    3) If counsel does not intend to represent appellant on appeal:
    a. Determine whether appellant is now indigent;
    i. If so, appoint substitute appellate counsel at no expense to
    appellant;
    ii. If not, admonish appellant regarding the dangers and
    disadvantages of self-representation, and:
    1. determine whether appellant is knowingly and
    intelligently waiving his right to counsel and, if so,
    obtain a written waiver of the right to counsel; or,
    2. if appellant does not wish to proceed pro se, provide a
    deadline by which appellant must hire an attorney;
    b. After making the indigency determination, enter an order allowing
    counsel to withdraw;
    4) If counsel intends to represent appellant on appeal, set a deadline by which
    appellant’s brief must be filed, which shall be no later than 30 days from
    the date of the hearing, regardless of whether this Court has reinstated the
    appeal;
    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.
    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.
    See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f), 26.04; TEX. R. APP. P.
    38.6(a); 
    Whitehead, 130 S.W.3d at 879
    ; 
    Jones, 98 S.W.3d at 703
    ; 
    Goffney, 843 S.W.2d at 584
    –85; 
    Hawkins, 613 S.W.2d at 722
    –23; cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g).
    The trial court shall have a court reporter, or court recorder, record the hearing.
    The trial court clerk is directed to file a supplemental clerk’s record containing the trial
    court’s findings, recommendations, and orders with this Court no later than 25 days from
    the date of this order. The court reporter is directed to file the reporter’s record of the
    hearing no later than 25 days from the date of this order. If the hearing is conducted by
    video teleconference, an electronic copy of the hearing shall be filed in this Court no later
    than 25 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 that comply with our order are filed
    with the Clerk of this Court. The court coordinator of the trial court shall set a hearing
    date and notify the parties.
    It is so ORDERED.
    Judge’s signature: /s/ Chief Justice Sherry Radack
    Acting individually  Acting for the Court
    Date: February 6, 2014
    

Document Info

Docket Number: 01-13-00552-CR

Filed Date: 2/6/2014

Precedential Status: Precedential

Modified Date: 10/16/2015