Rodolfo Rico v. the State of Texas ( 2021 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Rodolfo Rico v. The State of Texas
Appellate case number: 01-21-00051-CR
Trial court case number: 16-CCR-190942
Trial court: County Court at Law No. 6 of Fort Bend County
The Clerk of the Court has examined the clerk’s record and has found that it does not
comport with the Texas Rules of Appellate Procedure in that it does not include a copy of the trial
court’s certification of appellant’s right of appeal.1 See TEX. R. APP. P. 25.2(d), 34.5(a)(12). This
order constitutes notice to all parties of the defective certification. See TEX. R. APP. P. 37.1.
Further, the complete record was filed in the above-referenced appeal on March 22, 2021.
Appellant’s brief was therefore due on April 21, 2021. On April 29, 2021, 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. Nevertheless, appellant’s retained counsel, Lance C. Hamm, has neither filed a brief on
appellant’s behalf nor responded to the late-brief notice.
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
Fort Bend County District Attorney’s Office and appellant’s trial counsel, Lance C. Hamm, 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.2
1 The record does contain a Certification of Defendant’s Right of Appeal, but it is dated
January 9, 2019 and only applies to appellant’s plea of no contest, which resulted in
appellant’s placement on deferred adjudication. See TEX. R. APP. P. 25.2(a)(2) (requiring
trial court to enter certification each time it enters judgment or appealable order);
Hargesheimer v. State, 182 S.W.3d 906, 912, 913 (Tex. Crim. App. 2006). The record
therefore does not contain a certification that pertains to the trial court’s judgment of
October 23, 2020, adjudicating appellant’s guilt.
2 Any such teleconference must use a closed-circuit video teleconferencing system that
We direct the trial court to:
1) Execute a certification of appellant’s right to appeal;
2) Determine whether appellant still wishes to pursue this appeal;
3) Determine whether counsel, Lance C. Hamm, intends to represent appellant on
appeal;
4) If counsel intends to represent appellant on 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 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 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;
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. art. 1.051(a), (c), (d)(1), (g), (f), 26.04; TEX. R. APP. P. 25.2(a)(2),
(d), 34.5(a)(12), (c)(2), 38.6(a); 38.8(b); Whitehead v. State, 130 S.W.3d 866, 879 (Tex. Crim.
App. 2004); Goffney v. State, 843 S.W.2d 583, 584–85 (Tex. Crim. App. 1992).
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, and the certification of appellant’s right to appeal, with this Court
no later than December 22, 2021. See TEX. R. APP. P. 34.5(c). The court reporter is directed to
file the reporter’s record of the hearing no later than December 22, 2021. If the hearing is
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 her counsel shall be able to
communicate privately without being recorded or heard by the trial court or the attorney
representing the State.
conducted by video teleconference, an electronic copy of the hearing shall be filed in this Court
no later than December 22, 2021.
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: ___November 23, 2021___