The opinion
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Curtis Lee Johnson v. The State of Texas
Appellate case number: 01-11-00352-CR
Trial court case number: 1178448
Trial court: 208th District Court of Harris County
This case has previously been abated for a determination as to whether appointed counsel
has abandoned this appeal. On November 7, 2013, this Court reinstated this appeal and ordered
counsel for appellant to either re-file an Anders brief which is compliant with our court rules (the
Anders brief he attempted to file in February, 2013 was rejected by this Court for failure to
comply with the Texas Rules of Appellate Procedure, and counsel has been adequately notified
as such on several occasions), or to file appellant’s brief. No brief was filed. Most recently, on
March 18, 2014, this Court ordered counsel for Johnson to file either a compliant Anders brief or
appellant’s brief within 10 days or we will abate the appeal again.
We still are not in receipt of a compliant brief, whether in the form of a Motion to
Withdraw and accompanying Anders brief, or an appellant’s brief in accordance with Tex. R.
App. P. 38.1.
As such, we abate this appeal and remand the case to the trial court for a hearing on or
before May 5, 2014, at which appellant and appointed appellate counsel, Gary Polland, shall be
present in person. The court coordinator of the trial court shall set a date for said hearing and
notify the parties, including appellant. If appellant is now incarcerated, he may appear by
closed video teleconference.1 We direct the trial court to make appropriate written findings of
fact and conclusions of law and to execute any necessary orders on these issues:
1) Whether appellant still wishes to pursue this appeal;
2) Whether or not appointed counsel, Gary Polland, has abandoned this appeal and
whether or not to allow him to withdraw;
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, 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.
3) Whether appellant is now indigent and entitled to appointed counsel; and, if
indigent,
a. appoint counsel on appeal, and
b. order the court reporter to file the reporter’s record with this Court at no
cost to appellant;
4) If appellant is not indigent:
a. whether he has retained an attorney to file a brief, and, if so, obtain the
name, address, and telephone number of retained counsel;
b. if appellant has not retained counsel, the trial court shall admonish
appellant of the dangers and disadvantages of self-representation, and
i. determine whether appellant is knowingly and intelligently
waiving his right to counsel; or,
ii. if appellant does not wish to proceed pro se, provide a deadline by
which appellant must hire an attorney.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (f); Oliver, 872 S.W.2d at 716; Minjares, 577
S.W.2d at 224; cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g).
The trial court shall have a court reporter, or court recorder, record the hearing and file
the reporter’s record with the Court no later than 35 days from the date of this order.
Additionally, the trial court’s findings and recommendations and any orders issued pursuant to
this hearing shall be included in a supplemental clerk’s record and filed in this Court no later
than 35 days from the date of this order. If the hearing is conducted by video teleconference, a
certified electronic copy of the hearing shall be filed in this Court no later than 35 days from 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 reporter’s record of the hearing are filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Harvey Brown
Acting individually Acting for the Court
Date: April 8, 2014