The opinion
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Clyde Brian Bruton, Jr. v. The State of Texas
Appellate case numbers: 01-15-00115-CR
Trial court case numbers: 13CR1854
Trial court: 405th District Court of Galveston County
On July 30, 2013, appellant, Clyde Brian Bruton, Jr., was indicted by a grand jury
for the first-degree felony offense of possession with intent to deliver a controlled
substance listed in Penalty Group 1, namely, cocaine, in an amount of four grams or more
but less than 200 grams. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a), (d)
(West Supp. 2014). On October 31, 2014, after appellant filed a pro se pauper’s oath
application with his request for the appointment of counsel, the trial court found appellant
to be indigent and appointed Adam Brown as his trial counsel. On December 19, 2014,
the trial court granted appellant’s motion to substitute Terrence James Leonard II as his
trial counsel, and permitted Mr. Brown to withdraw as counsel.
On January 12, 2015, after appellant was convicted following a jury trial, the jury
assessed his punishment at twenty-seven years’ confinement. See TEX. PENAL CODE
ANN. §§ 12.32(a) (West Supp. 2014). The trial court certified appellant’s right of appeal
because this was not a plea-bargain case. See TEX. R. APP. P. 25.2(a)(2)(B). On
February 5, 2015, appellant, through counsel, timely filed a notice of appeal from the
judgment of conviction by jury. See id. at 26.2(a)(1). Although appellant filed another
pro se pauper’s oath application with his request for the appointment of counsel on
appeal on February 9, 2015, the trial court did not rule on that request. On May 12, 2015,
after the reporter’s record was filed, completing the appellate record, appellant’s brief
deadline was set for June 11, 2015. See id. at 38.8(a)(2).
On July 2, 2015, the Clerk of this Court notified appellant’s counsel, Terrence
James Leonard II, that a brief had not been timely filed and that if this Court did not
receive appellant’s brief or an extension motion within ten days of that notice, it may
order the trial court to conduct the late-brief abatement hearing required by Texas Rule of
Appellate Procedure 38.8(b)(2). On July 13, 2015, appellant timely filed a ninety-day
motion for extension of time, which was granted until September 11, 2015.
On September 8, 2015, appellant’s counsel filed a motion to withdraw as appellate
counsel. Counsel contends that, although appellant had been found indigent and
appointed counsel for trial, Mr. Leonard had been retained for trial purposes only, does
not handle appeals, and requests that this Court appoint new counsel for appellant.
An eligible indigent appellant has a right to have the trial court appoint counsel on
direct appeal from a criminal conviction. See Buntion v. Harmon, 827 S.W.2d 945, 948-
49 (Tex. Crim. App. 1992); see also TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1) (West
Supp. 2014). A criminal defendant whom the trial court has determined to be indigent “is
presumed indigent for the remainder of the proceedings in the case unless a material
change in [his] financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art.
26.04(p) (West Supp. 2014). Because the clerk’s record, filed on April 22, 2015, did not
contain any order showing any evidence of change in appellant’s financial circumstances
or that Mr. Leonard was discharged by the trial court, he continues to represent appellant,
whom we presume remains indigent. See id. at art. 26.04(j)(2).
Accordingly, we sua sponte abate this appeal and remand the case to the trial
court to immediately conduct a hearing at which a representative of the Galveston County
District Attorney’s Office and appellant’s counsel, Terrence James Leonard II, shall be
present. See TEX. R. APP. P. 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.1
The trial court shall have a court reporter record the hearing. We direct the trial
court to:
1) Determine whether appellant wishes to prosecute this appeal;
2) If appellant does wish to prosecute this appeal, determine whether Terrence
James Leonard II should be permitted to withdraw;
3) If counsel is permitted to withdraw, enter a written order relieving Terrence
James Leonard II of his duties as appellant’s counsel, including in the order
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 appellant’s request, 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.
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the basis for the finding of good cause;
4) Determine whether appellant is currently indigent or whether there has been
a material change in his financial circumstances since the trial court’s
October 31, 2014 order finding him to be indigent such that he is no longer
indigent;
5) If appellant is either currently indigent or there has not been a material
change in his financial circumstances, enter an order appointing substitute
appellate counsel at no expense to appellant;
6) If appellant is not currently indigent and there has been a material change in
his financial circumstances:
a. Enter written findings of fact establishing the material change in
appellant’s financial circumstances;
b. Admonish appellant regarding the dangers and disadvantages of self-
representation, and
i. determine whether appellant is knowingly and intelligently
waiving his right to counsel;
ii. find whether it would or would not be in the best interests of
appellant and the State for him to proceed pro se; and
iii. if so, obtain a written waiver of the right to counsel and
provide appellant with a copy of a written order setting a date
when appellant’s pro se brief is due, regardless of whether
this Court has yet reinstated the appeal and no later than 30
days from the date of the hearing; or
iv. if appellant does not wish to proceed pro se, or if the trial
court finds that self-representation would not be in the best
interests of appellant and the State, provide a deadline by
which appellant must hire an attorney, which must be no
more than 30 days from the date of the hearing;
7) Make any other findings and recommendations the trial court deems
appropriate; and
8) 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
Supp. 2014); TEX. R. APP. P. 25.2(a)(2), (d), 38.8(b)(3); Gonzalez v. State, 117 S.W.3d
831, 837 (Tex. Crim. App. 2003); cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g),
26.04(j)(2).
The trial court clerk is directed to file a supplemental clerk’s record containing the
trial court’s findings and recommendations, and any orders issued pursuant to this
hearing, with this Court no later than 30 days from the date of this order. See TEX. R.
APP. P. 34.5(c). The court reporter is directed to file the supplemental reporter’s record
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of the hearing no later than 30 days from 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 no later than 30 days from the date of this order.
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 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/ Laura Carter Higley
Date: September 16, 2015
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