Demetrick James v. State

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Demetrick James v. The State of Texas
Appellate case number: 01-17-00300-CR
Trial court case number: 1510754
Trial court: 262nd District Court of Harris County
On April 20, 2017, after appellant, Demetrick James, had pleaded guilty to the
first-degree felony of engaging in organized criminal activity without an agreed
punishment recommendation, the trial court assessed his punishment at forty-five years’
confinement. Appellant, through trial counsel, filed a notice of appeal the same day with
a motion to withdraw, which was granted. On April 25, 2017, the trial clerk’s letter of
assignment assigning appellant’s notice of appeal to this Court listed “TO BE
DETERMINED” as appellate attorney of record.
The trial court signed a certification of appellant’s right of appeal on April 20,
2017, indicating that appellant had waived his right of appeal. Because this certification
appeared to be inconsistent with the judgment of conviction, the Clerk of this Court
requested an amended certification from the district clerk on August 17, 2017. This order
constitutes notice to all parties of the apparent defective certification of the right of
appeal. See TEX. R. APP. P. 37.1. No amended certification has been filed in this Court.
On June 15, 2017, a corrected letter of assignment was filed in this Court
indicating that Kristin Guiney had been appointed as counsel for appellant on April 24,
2017. The reporter’s record was filed on July 5, 2017, and the clerk’s record on August
14, 2017, making the record complete and setting appellant’s brief due by September 13,
2017. See TEX. R. APP. P. 38.6(a)(2). However, because no attorney’s information had
been listed on the district clerk’s initial letter of assignment and none has appeared in this
Court on appellant’s behalf, the Clerk of this Court sent all notices, including a late-brief
notice on September 20, 2017, to the pro se appellant. The Clerk of this Court is
directed to add Kristin Guiney as appellant’s counsel in this case.
Accordingly, the Court sua sponte abates this appeal and remands the cause to
the trial court for further proceedings. On remand, the trial court shall immediately
conduct a hearing at which a representative of the Harris County District Attorney’s
Office and appellant’s counsel, Kristin Guiney, 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 use of a closed-circuit video
teleconferencing system.1
We direct the trial court to:
1) Execute an amended certification of appellant’s right to appeal indicating
whether appellant has the right of appeal in this case;
2) Determine whether appellant still wishes to pursue this appeal;
3) If appellant wishes to pursue this appeal, determine whether appellant’s
counsel, Kristin Guiney, intends to represent appellant on this appeal or
whether counsel should be permitted to withdraw;
4) If Kristin Guiney intends to represent appellant on this appeal, set a date
certain when appellant’s brief will be due, regardless of whether this Court
has yet reinstated this appeal and no later than 30 days from the date of the
hearing;
5) If Kristin Guiney has abandoned this appeal or is permitted to withdraw,
enter a written order relieving Kristin Guiney of her duties as appellant’s
counsel, including in the order the basis for the finding of abandonment,
determine whether appellant is indigent, and:
a. if appellant is indigent, appoint substitute appellate counsel at no
expense to appellant;
b. if appellant is not indigent and wishes to proceed pro se, admonish
appellant of the dangers and disadvantages of self-representation,
and:
i. determine whether appellant is knowingly and intelligently
waiving his right to counsel, and
ii. determine whether any decision by appellant to proceed pro
se is in the best interest of appellant, the State, and the
administration of justice; and
iii. if so, obtain a written waiver of the right to counsel and set a
date certain when appellant’s brief will be due, regardless of
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.
whether this Court has yet reinstated this appeal and no later
than 30 days from the date of the hearing; or
iv. if appellant does not wish to proceed pro se, provide a
deadline by which appellant must hire an attorney;
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. ANN. art. 1.051(a), (c), (d)(1), (f); 26.04(j)(2), (p) (West
2015); TEX. R. APP. P. 25.2(a)(2), (d); Ward v. State, 740 S.W.2d 794, 798 (Tex. Crim.
App. 1987); Lopez v. State, 486 S.W.2d 559, 560 (Tex. Crim. App. 1972); Fowler v.
State, 874 S.W.2d 112, 114 (Tex. App.—Austin 1994, order, pet. ref’d).
The court coordinator of the trial court shall set a hearing date no later than 30
days from the date of this order and notify the parties and the Clerk of this Court of
such date. The trial court clerk is directed to file a supplemental clerk’s record containing
the trial court’s amended certification of appellant’s right of appeal and any findings,
recommendations, and orders with this Court within 30 days of the date of the hearing.
The court reporter is directed to file the reporter’s record of the hearing within 30 days of
the date of the hearing. If the hearing is conducted by video teleconference, a certified
video recording of the hearing shall also be filed in this Court within 30 days of the date
of this hearing.
This appeal is abated, treated as a closed case, and removed from this Court’s
active docket. This appeal will be reinstated on this Court’s active docket when a
compliant supplemental clerk’s record and the supplemental reporter’s record, if any, are
filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley
 Acting individually  Acting for the Court
Date: September 26, 2017