COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Robert Thomas Wilharm v. The State of Texas

Appellate case number: 01-15-00507-CR

Trial court case number: 1402605

Trial court: 174th District Court of Harris County

Appellant’s appointed counsel, Joe David Wells, has not filed a brief on appellant’s 

behalf in the above-referenced appeal. Appellant’s brief was originally due on August 6, 2015. 

On August 28, 2015, the Court granted appellant’s first motion for extension of time to file a 

brief, ordering that appellant’s brief be filed by September 28, 2015. On October 15, 2015, the 

Clerk of the Court notified appellant that a brief had not yet been filed and required a response 

within 10 days. See TEX. R. APP. P. 38.8(b)(2). No response was received.

Pursuant to Rule of Appellate Procedure 38.8, we must abate this appeal and remand the 

case to the trial court for a hearing. See TEX. R. APP. P. 38.8(b)(2)–(3). We direct the trial court 

to conduct a hearing at which a representative of the Harris County District Attorney’s Office, 

Counsel Martin, and appellant shall be present.1 The trial court shall have a court reporter record 

the hearing. The trial court is directed to make appropriate findings on these issues:

(1) whether appellant wishes to prosecute the appeal; and, if so,

(2) whether Counsel Wells has abandoned the appeal by failing to timely file a brief on 

appellant’s behalf; 

(3) and, if so, whether appellant is presently

(a) indigent, in which case the trial court should appoint new appellate counsel at no 

expense to appellant and establish a date by which counsel will file a brief, no 

later than 30 days from the appointment; or

 

1 If appellant is incarcerated, at the trial court’s discretion, appellant may participate in the hearing 

by closed-circuit video teleconferencing. 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.
(b) not indigent, in which case the trial court should establish a date by which 

appellant shall retain new counsel;

(4) or, if Counsel Wells has not abandoned the appeal, make appropriate findings and 

recommendations regarding the reason that Counsel has failed to file a brief and 

establish a date by which Counsel will file appellant’s brief, no later than 30 days 

from the date of the hearing. 

TEX. CODE CRIM. PROC. ANN. arts. 1.051(d), 26.04; TEX. R. APP. P. 38.8(b)(2), (3), (4).

The trial court shall cause a supplemental clerk’s record containing its findings and 

recommendations, including the name, address, telephone number, and State Bar number of any 

substitute counsel, and the reporter’s record of the hearing to be filed in this Court no later than 

December 22, 2015. If the hearing is conducted by video teleconference, a certified video 

recording of the hearing shall be filed in this Court no later than December 22, 2015.

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 a supplemental clerk’s 

record that complies with this order, and the reporter’s record of the hearing, have been filed in 

this Court. The trial court coordinator 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/ Harvey Brown

 Acting individually  Acting for the Court

Date: December 1, 2015