Otoniel Guzman v. State

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Otoniel Guzman v. The State of Texas
Appellate case number: 01-18-00442-CR
Trial court case number: 1540453R
Trial court: 432nd District Court of Tarrant County1
On April 30, 2018, appellant, Otoniel Guzman, filed a pro se notice of appeal from
the April 30, 2018 judgment of conviction following a jury trial of the first-degree felony
offense of continuous sexual abuse of a child under fourteen years of age for which the
jury assessed appellant’s punishment at thirty years’ confinement. The trial court certified
that this was not a plea-bargain case, and that appellant had the right to appeal, and it
appointed Leigh Davis as counsel for appellant. See TEX. R. APP. P. 25.2(a)(2). On
October 1, 2018, this Court had granted appellant’s appointed counsel’s first motion for an
extension of time to file appellant’s brief until November 27, 2018, with no further
extensions to be granted absent extraordinary circumstances.
This Court’s November 1, 2018 Order had granted the motion for substitution of
counsel by Danny D. Burns and George Mackey. Because appellant did not timely file a
brief, the Clerk of this Court sent a late-brief notice on December 5, 2018, notifying
appellant’s retained counsel, Danny D. Burns and George Mackey, that this case would be
abated for a hearing pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), if either the
brief or an extension motion were not filed within 10 days of that notice. Nevertheless,
counsel has neither timely filed a brief nor an extension request on appellant’s behalf.
The Court therefore sua sponte abates this appeal and remands for the trial court
to immediately conduct a hearing at which a representative of the Tarrant County District
1
The Texas Supreme Court transferred this appeal from the Court of Appeals for the
Second District of Texas to this Court pursuant to its docket equalization powers. See
TEX. GOV’T CODE ANN. § 73.001 (West 2013); Misc. Docket No. 18-9049 (Tex. Mar.
27, 2018).
Attorney’s Office and appellant’s counsel, Danny D. Burns and George Mackey, 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
Danny D. Burns and George Mackey have abandoned this appeal;
(3) if counsel Danny D. Burns and George Mackey have not abandoned this appeal:
a. inquire of counsel the reasons, if any, that they have failed to file a
brief 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 Danny D. Burns and George Mackey have abandoned this appeal, enter a
written order relieving Danny D. Burns and George Mackey of their 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, 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 a new appellate 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 to
these issues, separate and apart from any docket sheet notations.
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.
2
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (d)(1), (f) (West 2005); 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 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
findings and recommendations with this Court within 15 days of the date of the hearing.
The court reporter is directed to file the reporter’s record of the hearing within 15 days of
the date of the hearing. If the hearing is conducted by video teleconference and
electronically recorded, a certified video recording of the hearing shall also be filed in this
Court within 15 days of the date of this hearing.
If Danny D. Burns and George Mackey file an extension motion and brief on
appellant’s behalf in this Court and a copy of such brief in the trial court, which brief
complies with Texas Rule of Appellate Procedure 38.1, no later than 10 days from the
date of this Order, together with a motion requesting that the Court withdraw this Order
of Abatement, this Court may reconsider and withdraw this Order and reinstate the appeal.
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 the supplemental
clerk’s record and the supplemental reporter’s record, if any, that comply with this Order,
are filed in this Court.
It is so ORDERED.
Judge’s signature: ___/s/ Evelyn V. Keyes____
 Acting individually  Acting for the Court
Date: __January 17, 2019_____
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