C OURT OF A PPEALS FOR THE
F IRST D ISTRICT OF T EXAS AT H OUSTON

O RDER OF A BATEMENT

Appellate case name: Justin Daren Buxton v. The State of Texas

Appellate case number: 01

- 1 5

- 00 8 5 7

- CR

Trial court case number: 1482081

Trial court: 228 t h District Court of Harris County

The complete record was filed in the above

- referenced appeal on December 1,

201 5 , with the filing of the clerk’s record, and a ppellant’s brief w as s et to be due within 30 days of th e filing of the clerk’s record, or by December 31 , 201 5

. 1 Because appellant did not timely file a brief by December 31 , 201 5 , the Clerk of this Court sent a late brief

notice on January 1 5 , 201 6 , notif ying appellant ’s counsel that th i s case would be abated for a hearing pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), if either his brief

or an extension motion w ere not filed within 10 days of th at notice.

On February 2, 2016, this Court granted, in part, the first extension re quest filed by appellant’s appointed counsel, Mandy Miller, for ninety days. In that Order, this Court also warned counsel that no further extensions would be granted given the length of that extension, and threatened to abate this appeal if appellant’s b rief were not timely filed by March 30, 2016.

Although no appellant’s brief was timely filed, appellant’s counsel filed a second extension request, in this Court on April 4, 2016, seeking to extend the time to file appellant’s brief until April 29, 2016. Appellant’s motion failed to mention that this was appellant’s second extension request , that this Court had warned counsel that no further extensions would be granted and, in any event, did not allege any exceptional circumstances in this second request. See T EX

. R. A PP

. 10.5(b)(1)(C), (D), 38. 6 ( d ).

1 A lthough a supplemental reporter’s record attaching the hearing record for the motion for

new trial was filed in this Court on December 22, 2015 , appellant’s notice of appeal was filed on October 1, 2015, the same date that the sentence was imposed in this case

.We therefore deny this second extension and sua sponte abate th i s appeal and

remand for the trial court to immediately conduct a hearing at which a representative of the Harris County District Attorney’s Offi ce and appellant’s counsel, Mandy Miller , shall be present. T EX

. R. A PP . 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. 2

The trial court shall have a court reporter record the hearing. The trial court is

directed to:

(1) make a finding on whether a ppellant wishes to prosecute th i s appeal s (2) if appellant does wish to prosecute th i s appeal

, determine whether counsel Mandy Miller has abandoned th i s appeal ; (3) if counsel Mandy Miller has not abandoned th i s appeal :

a. inquire of counsel the reasons, if any, that s he has failed to file a brief timely on appellant’s behalf; and

b. set a date certain when appellant’s brief will be due, regardless of whether this Court has yet reinstated th i s appeal and no later than 30 days from the date of the hearing; (4) if Mandy Miller has abandoned th i s appeal , enter a written order relieving Mandy Miller of h er 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 still indigent, appoint substitute appellate counsel at no expense to appellant;

b. if appellant is not indigen t, 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 w hen appellant’s brief s

are due, regardless of whether this Court has yet reinstated these appeals 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 a ttorney; (5) make any other findings and recommendations the trial court deems appropriate; and

2 Any such teleconference must use a closed

- circuit video teleconferencing system that provides for a simultaneous compressed full motio n 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 rec orded or heard by the trial court or the attorney representing the State.(6) enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.

See T EX

. C ODE C RIM

. P ROC

. A NN . art. 1.051( a), (d)(1), (f) (West Supp. 2015 ); T EX

. R.

A PP

. 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 fac tors relating to fair and orderly administration of justice); cf

. T EX

. C ODE C RIM

. P ROC

. A NN

. 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) (authorizin g trial court to order appointed counsel to withdraw after finding of good cause is entered on record).

The court coordinator of the trial court shall set a hearing date no later than 30 days from the date of this order and notify the parties and the Clerk of this Court of

such date. The trial court clerk is directed to file a supplemental clerk’s record containing the trial court’s findings and recommendations with this Court within 30 days of the date

of th e hearing . The court reporter is directed to file the reporter’s record of the hearing within 30 days of the date of th e hearing

. If the hearing is conducted by video teleconference, a certified video recording of the hearing shall also be filed in this Court within 30 days of the date of this hearing

.

If Mandy Miller files a n extension motion and brief on appellant’s behalf in this Court and a copy of such brief in the trial court, which brief complies with Texas Rule of Appellate Procedure 38.1, no later than ten days from the date of this o rder , together with a motion requesting that we withdraw this Order of Abatement, we may rec onsider and withdraw this order and reinstate the appeal.

This appeal is abated, treated as a closed case, and removed from this Court’s

active docket. T his 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.

It is so ORDERED

.

Judge’s signature: / s/ Evelyn V. Keyes

 Acting individually  Acting for the Court

Date: A pril 7, 2016