Buck Alan Winton v. the State of Texas ( 2021 )

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON CONTINUING ABATEMENT ORDER Appellate case name: Buck Alan Winton v. The State of Texas Appellate case number: 01-20-00155-CR Trial court case number: 85805-CR Trial court: 239th District Court of Brazoria County On August 13, 2020, this Court issued an order abating the appeal and remanding to the trial court for a hearing to determine why appellant had failed to make financial arrangements for the filing of the clerk’s record. We directed the trial court to have a supplemental clerk’s record filed containing its findings and conclusions and a reporter’s record of the hearing filed in this Court by September 11, 2020. No hearing record was filed and the supplemental clerk’s record filed on September 11, 2020, contained no findings and conclusions. On August 31, 2020, while the case was abated, retained counsel Shawn Roberts filed a motion to dismiss the appeal. On October 6, 2020, this Court denied the motion to dismiss without prejudice to refile a motion in compliance with the requirement of Rule 42.2(a) to include appellant’s signature. See TEX. R. APP. P. 42.2(a). No further motion to dismiss was filed. No clerk’s record has been filed. Accordingly, this Court must continue the abatement and direct the trial court to conduct a hearing at which a representative of the Brazoria County District Attorney’s Office, retained counsel Shawn Roberts, and appellant shall be present.* The trial court shall have a court reporter record the hearing. The trial court is directed to make appropriate findings on these issues: (1) whether appellant wishes to prosecute this appeal; and, if so, (2) whether retained counsel Roberts has abandoned the appeal; * If appellant is incarcerated, at the trial court’s discretion, appellant may participate in the hearing by closed-circuit video teleconferencing. 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. (3) and, if so, whether appellant is presently (a) indigent, in which case the trial court should appoint new appellate counsel at no expense to appellant and establish a date by which the clerk’s record will be filed, no later than 30 days from the appointment; or (b) not indigent, in which case the trial court should establish a date by which appellant shall retain new counsel; (4) or, if retained counsel Roberts has not abandoned the appeals, make appropriate findings and recommendations regarding the reason that counsel has failed to make payment arrangements for the clerk’s record, no later than 30 days from the date of this order. TEX. CODE CRIM. PROC. arts. 1.051(d), 26.04; TEX. R. APP. P. 35.2, 35.3(a), (c) The trial court shall cause a supplemental clerk’s record containing its findings and recommendations, including the name, address, telephone number, and State Bar number of any substitute counsel, and the reporter’s record of the hearing, to be filed in this Court no later than January 28, 2022. If the hearing is conducted by video teleconference, a certified video recording of the hearing shall be filed in this Court no later than January 28, 2022. 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 a supplemental clerk’s record that complies with this order, and the reporter’s record of the hearing, have been filed in this Court. The trial court coordinator shall set a hearing date and notify the parties and the Clerk of this Court of such date. It is so ORDERED. Judge’s signature: _____/s/ Peter Kelly______  Acting individually  Acting for the Court Date: __December 14, 2021_____