COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Ashford Smith v. The State of Texas

Appellate case number: 01-19-00936-CR

Trial court case number: 1520594

Trial court: 209th District Court of Harris County

The complete record was filed in this appeal on February 12, 2020. Appellant’s 

brief, therefore, was due on March 13, 2020. See TEX. R. APP. P. 38.6(a). On March 17, 

2020, the Clerk of this Court notified appellant that the time for filing his brief had expired 

and, unless the Court received a motion for an extension of time, with appellant’s brief, or 

a motion for an extension of time to file appellant’s brief within ten days of the date of the 

notice, the Court would be required to order the trial court to conduct a hearing pursuant to 

Texas Rule of Appellate Procedure 38.8. See TEX. R. APP. P. 38.8(b)(2), (3); see also id.

10.5(b). Appellant has not filed a brief, a motion for an extension of time, or otherwise 

responded to this Court’s notice. 

Accordingly, we 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 appointed counsel, Daniel J. Werlinger, shall be present. TEX. R. APP. P. 

38.8(b)(2). Appellant shall also be present for the hearing in person or, if he is incarcerated, 

at the trial court’s discretion, he may participate in the hearing by closed-circuit video 

teleconferencing.1

The trial court is directed to:

(1) determine whether appellant wishes to prosecute the appeal; 

(2) if appellant wishes to prosecute the appeal, determine whether good cause 

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 his request, appellant and his counsel shall be able to communicate 

privately without being recorded or heard by the trial court or the State’s attorney.
exists to relieve Daniel J. Werlinger of his duties as appellant’s counsel; 

(3) if good cause exists, enter a written order relieving Daniel J. Werlinger of his 

duties as appellant’s counsel, including in the order the basis for and finding 

of good cause, and appoint substitute appellate counsel at no expense to 

appellant;

(4) if good cause does not exist, set a date 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;

(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.

See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), 26.04(j)(2) (West Supp. 2017); 

TEX. R. APP. P. 38.8(b).

The trial court shall have a court reporter record the hearing and file the reporter’s 

record with this Court within 30 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 and any orders with this Court within 30 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 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/ Evelyn V. Keyes______

  Acting individually  Acting for the Court

Date: ____May 5, 2020___