Jose Alfonso Guerrero v. State

COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name: Jose Alfonso Guerrero v. The State of Texas

Appellate case number: 01-11-01013-CR

Trial court case number: 1741578

Trial court: County Criminal Court at Law No. 4 of Harris County

The complete record has been filed in the above-referenced appeal for approximately five

months. Appellant’s retained counsel, W. Troy McKinney, has not filed a brief on appellant’s

behalf. Appellant’s brief was first due on April 20, 2012. On April 30, 2012, this Court granted

a motion for extension of time to file appellant’s brief, ordering appellant to file his brief by May

31, 2012. On June 11, 2012, the Clerk of this Court notified appellant that a brief had not yet

been filed and required that a response be filed within 10 days. On the same day, appellant filed

a second motion for extension of time to file his brief. On June 13, 2012, this Court granted the

second motion, providing appellant with a deadline of July 9, 2012 for filing his brief.

Nevertheless, appellant has failed to file a brief.

We therefore abate the appeal and remand for the trial court to immediately conduct a

hearing at which a representative of the Harris County District Attorney’s Office and appellant’s

counsel, W. Troy McKinney, 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. 1

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 the appeal;

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 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) if appellant does wish to prosecute the appeal, determine whether counsel W. Troy

McKinney has abandoned the appeal;

(3) if counsel W. Troy McKinney has not abandoned the appeal:

a. inquire of counsel the reasons, if any, that he has failed to file a brief on

appellant’s behalf;

b. determine whether appellant has paid counsel’s fee for preparing an

appellate brief and determine whether appellant has made any other

necessary arrangements for filing a brief; and

c. set a date certain when appellant’s 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;

(4) if W. Troy McKinney has abandoned this appeal, enter a written order relieving W.

Troy McKinney of his 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 now 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 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,

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 to these

issues, separate and apart from any docket sheet notations.

See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (d)(1), (f) (West Supp. 2011); 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); Webb v. State, 533 S.W.2d 780, 784, 785 (Tex. Crim.

App. 1976) (stating that criminal defendant may not manipulate right to choose counsel so as to

interfere with fair administration of justice; “The trial court should therefore admonish an

accused who desires to represent himself regarding the wisdom and practical consequences of

that choice.”); Carter v. State, No. 01-95-00977-CR, 1997 WL 184385, *1 (Tex. App.—Houston

[1st Dist.] April 17, 1997, pet. ref’d) (not designated for publication) (“Thus, the public interest

in the fair and orderly administration of justice may be greater than an accused’s right to have

counsel of his own choice.”); 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 trial court clerk is directed to file a supplemental clerk’s record containing the trial

court’s findings and recommendations with this Court by no later than September 12, 2012. The

court reporter is directed to file the reporter’s record of the hearing by no later than September

12, 2012. 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 September 12, 2012.

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 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/ Justice Harvey Brown

 Acting individually  Acting for the Court

Date: August 17, 2012