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COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name: Caylon Johnson v. The State of Texas

Appellate case number: 01-13-00833-CR; 01-13-00834-CR

Trial court case number: 1338720, 1338721

Trial court: 374th District Court of Harris County

On April 17, 2014, these cases were abated and remanded to the trial court for the trial 

court to (1) determine whether appellant wishes to prosecute these appeals, and (2) determine 

whether appellant’s counsel had abandoned the appeals, and, if counsel had not abandoned the 

appeals, to inquire why appellant and his counsel have not responded to this Court’s October 28, 

2013 notice regarding the lack of a reporter’s record due to non-payment. Our October 28, 2013 

notice informed appellant that unless he provided either proof of payment for preparation of the 

reporter’s record, proof of having made payment arrangements for the reporter’s record, or a 

response showing that he was exempt from paying for the reporter’s record by November 27, 

2013, the Court might consider and decide those issues or points that do not require a reporter’s 

record. See TEX. R. APP. P. 37.3(c).

On May 1, 2014, the trial court held a hearing on our abatement order and the trial court 

clerk and court reporter subsequently filed their respective records of the hearing. The record 

from the abatement hearing indicated that appellant wished to proceed with his appeals, appellant

continued to retain Nancy Knox-Bierman as counsel on appeal, and the trial court reiterated its 

finding that appellant was not indigent and was not entitled to proceed with his appeals without 

advanced payment of costs. On September 30, 2014, we entered an order reinstating the appeals 

and ordered appellant’s brief to be filed.

On November 20, 2014 and January 28, 2014, the Clerk of this Court sent two separate 

notices informing appellant and his counsel that a brief had not been filed and that, unless 

appellant filed a motion requesting an extension of time along with appellant’s brief or a motion 

to extend time to file appellant’s brief within 10 days, the Court might 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). Appellant’s counsel has not filed a response to these notices nor has a brief been 

filed on appellant’s behalf.
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Accordingly, we abate the appeals and remand for the trial court to conduct a hearing at 

which a representative of the Harris County District Attorney’s Office and appellant’s counsel, 

Nancy Knox-Bierman, shall be present. See 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.

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 appeals; 

(2) if appellant wishes to prosecute the appeal, determine whether counsel Nancy KnoxBierman has abandoned the appeals;

(3) if counsel Nancy Knox-Bierman has not abandoned the appeals:

a. inquire of counsel the reasons, if any, as to why she has failed to file a 

brief on appellant’s behalf and has failed to respond to this Court’s 

notices;

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 appeals and no later than 30 days from the 

date of the hearing;

(4) if Nancy Knox-Bierman has abandoned this appeal, enter a written order relieving 

Nancy Knox-Bierman of her 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, which must be no more 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, separate and apart from any docket sheet notations.

See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (d)(1), (f) (West Supp. 2013); 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 
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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) (West Supp. 2013) (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 no later than 30 days from the date of this 

order. The court reporter is directed to file the reporter’s record of the hearing no later than 30 

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 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/ Jane Bland

 Acting individually  Acting for the Court

Date: March 10, 2015