Milton Wayne Kay v. State ( 2013 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Cause No. 01-13-00595-CR; Milton Wayne Kay v. The State of Texas
On Appeal from the 260th District Court of Orange County, Texas
Trial Court Cause No. 1307615
We are in receipt of a letter dated December 16, 2013 from counsel for appellant, Denise
Gremillion, indicating she has begun a new job with the Orange County District Attorney’s
Office, creating a direct conflict with her client in this matter. We do not have jurisdiction to
remove or appoint counsel in criminal matters.
As such, we abate this appeal and remand the case to the trial court for a hearing at which
appellant shall be present in person. The court coordinator of the trial court shall set a date for
said hearing and notify the parties, including appellant. If appellant is now incarcerated, he may
appear by closed video teleconference.1 Trial counsel and any potential substitute counsel for
this appeal shall also be present. 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 to allow trial counsel to withdraw;
3) 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;
4) If appellant is not indigent:
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, 872 S.W.2d at 716; Minjares, 577
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, 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.
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S.W.2d at 224; 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/ Rebeca Huddle
Q Acting individually Q Acting for the Court
Date: December 19, 2013
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