Andrew Gwyn v. State

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
MEMORANDUM ORDER
Appellate case name: Andrew Gwyn v. The State of Texas
Appellate case number: 01-13-00465-CR
Trial court case number: 1336763
Trial court: 178th District Court of Harris County
On May 15, 2013, appellant, Andrew Christian Gwyn, was convicted of the felony
offense of sexual assault of a child and sentenced to two years imprisonment. Appellant filed his
notice of appeal on May 31, 2013. See Tex. R. App. P. 26.2. Because appellant filed a motion for
new trial, the record was due on September 12, 2013. See TEX. R. APP. P. 35.2. The clerk’s
record was filed on September 11, 2013 and the reporter’s record has not been filed.
On September 23, 2013, the court reporter responsible for preparing the record in this
appeal informed the Court that appellant had not paid for the reporter’s record. Although
appellant was represented in the trial court by retained counsel who also signed the notice of
appeal for appellant, the reporter further informed the Court that appellant’s counsel advised the
reporter that she does not represent appellant in his appeal. Nevertheless, if retained trial counsel
does not wish to continue to represent an appellant, counsel must file a motion to withdraw. See
Whitehead v. State, 130 S.W.3d 866, 879 (Tex. Crim. App. 2004). No motion to withdraw
appears in the record. Nor does the record contain any indication that appellant has been
admonished regarding the dangers and disadvantages of proceeding pro se or made an intelligent
and voluntary waiver of the right to counsel on appeal. See TEX. CODE CRIM. PROC. ANN. art.
1.051(a), (f) (West Supp. 2011); Goffney v. State, 843 S.W.2d 583, 584–85 (Tex. Crim. App.
1992); Hawkins v. State, 613 S.W.2d 720, 722–23 (Tex. Crim. App. 1981); cf. TEX. CODE CRIM.
PROC. Ann. art. 1.051(g). Therefore, the record is unclear as to whom, if anyone, represents
appellant on appeal.
Accordingly, we abate the appeal and remand the cause to the trial court to conduct a
hearing at which a representative of the Harris County District Attorney’s Office and appellant’s
trial counsel, Kathleen Robbins, shall be present. At the trial court’s discretion, appellant may be
present for the hearing in person or, if appellant is incarcerated, appellant may participate in the
hearing by closed-circuit video teleconferencing.
We direct the trial court to:
1) Determine whether appellant still wishes to pursue this appeal;
2) Determine whether counsel, Kathleen Robbins, intends to represent appellant on
appeal;
3) If counsel does not intend to represent appellant on appeal:
a. Determine whether appellant is now indigent, and if appellant is indigent
(i) appoint substitute appellate counsel at no expense to appellant and (ii)
order the court reporter to file the reporter’s record in this case within 25
days of the date of this order, at no cost to appellant;
b. If appellant is not indigent, 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;
4) Enter written findings of fact, conclusions of law, and recommendations as to
these issues, separate and apart from any docket sheet notations; and
5) Make any other findings and recommendations the trial court deems appropriate.
See TEX. CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f), 26.04; TEX. R. APP. P. 38.8(b);
Whitehead, 130 S.W.3d at 879; Goffney, 843 S.W.2d at 584–85; Hawkins, 613 S.W.2d at 722–
23; cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g).
The trial court shall have a court reporter record the hearing and file a supplemental
reporter’s record with this Court within 25 days of the date of this order. 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 25 days of the date of this order. If the hearing is
conducted by video teleconference, a certified video recording of the hearing shall also be filed
in this Court within 25 days of the date of this order.
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 the supplemental reporter’s record of the hearing are filed in this Court. The court
coordinator of the trial court 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/ Jane Bland
 Acting individually  Acting for the Court
Date: April 8, 2014