Hung Dasian Truong v. State

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF CONTINUING ABATEMENT
Appellate case name: Hung Dasian Truong v. The State of Texas
Appellate case number: 01-16-00390-CR; 01-17-00343-CR
Trial court case number: 1172979
Trial court: 339th District Court of Harris County
Appellant appeals the trial court’s May 3, 2016 order (“the 2016 appeal”) and May
3, 2017 order (“the 2017 appeal”) renewing his commitment to inpatient treatment
following a verdict finding him not guilty by reason of insanity of the offense of
manslaughter.
In response to our December 12, 2017 order abating the 2017 appeal,1 the trial court
clerk filed an information sheet stating, “This case is on the trial court’s docket for 4/2/18.”
The trial court clerk attached the docket sheet, which reflected an “NGRI Commitment
Status Conference” scheduled for April 2, 2018, at 9:00 a.m. The trial court has failed to
file a supplemental record, as ordered by this Court, nor has the trial court filed any
document indicating that it conducted the hearing as directed in the December 12, 2017
order.
The hearing scheduled for April 2, 2018, appears to be the annual hearing to
determine whether to renew appellant’s inpatient commitment. This hearing does not
satisfy this Court’s prior abatement orders of September 7, 2017, and December 12, 2017,
which ordered the trial court to hold a hearing to determine whether appellant wishes to
pursue the 2017 appeal.
1 We abated the 2017 appeal on September 7, 2017, after appellate counsel failed to
file a brief. We abated the 2016 appeal on January 4, 2018, until such time as the
trial court files the requested findings and conclusions following the abatement
hearing for the 2017 appeal.
We therefore order the trial court to immediately conduct a hearing, specifically
to make fact findings as outlined below, at which a representative of the Harris County
District Attorney’s Office and appellant’s counsel, Staci Biggar, shall be present. TEX. R.
APP. 38.8(b)(2). 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
The trial court shall have a court reporter record the hearing. The trial court is
directed to:
(1) make a finding on whether appellant wishes to prosecute this appeal;
(2) if appellant does wish to prosecute this appeal, determine whether counsel Staci
Biggar has abandoned this appeal;
(3) if counsel Staci Biggar has not abandoned this appeal:
a. inquire of counsel the reasons, if any, that she has failed to file a brief
timely on appellant’s behalf; and
b. 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;
(4) if Staci Biggar has abandoned this appeal, enter a written order relieving Staci
Biggar 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 still indigent, appoint substitute appellate counsel at no
expense to appellant;
b. if appellant is not indigent, 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, if so, obtain a written waiver of
the right to counsel and set a date certain when appellant’s briefs
are due, regardless of whether this Court has yet reinstated these
appeals and no later than 30 days from the date of the hearing; or,
ii. if appellant does not wish to proceed pro se, provide a deadline by
which appellant must hire an attorney;
(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
2 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.
to these issues, separate and apart from any docket sheet notations, and
supplement the appellate record accordingly.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (d)(1), (f) (West 2015); TEX. R. APP. P.
38.8(b); Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003) (stating that
presumption in favor of right to choice of counsel may be overridden by other factors
relating to fair and orderly administration of justice); cf. TEX. CODE CRIM. PROC. ANN. art.
1.051(g) (requiring trial court to advise defendant of dangers and disadvantages of self-
representation prior to proceeding to trial), 26.04(j)(2) (authorizing trial court to order
appointed counsel to withdraw after finding of good cause is entered on record).
The court coordinator of the trial court shall set a hearing date no later than 14 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 findings and recommendations with this Court within 10 days of the date of the
hearing. The court reporter is directed to file the reporter’s record of the hearing within
10 days of the date of the hearing.
The 2016 appeal and the 2017 appeal will be reinstated on this Court’s active docket
when the supplemental clerk’s record and the reporter’s record are filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes
Acting individually Acting for the Court
Date: February 15, 2018