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: Allen Keith Alexander v. The State of Texas

Appellate case number: 01

- 1 8

- 0 0 959

- CR

Trial court case number: 151 1205

Trial court: 337 th District Court of Harris County

On August 13, 2018, appellant, Allen Keith Alexander, pleaded guilty to the first

degree felony offense of aggravated sexual assault of a child

—under fourteen years of age, without an agreed punishment recommendation, pending a presentence investigation (“PSI”) hearing

. See T EX

. P ENAL C ODE A NN

. § 22.021(a)(1)(B)(i), (2)(B), (e) (West 2011). The trial court certified on August 13, 2018, that this was not a plea

- barg ain case, and that appellant had the right to appeal. See T EX

. R. A PP

. P. 25.2(a)(2). At the PSI hearing on

October 1 8 , 2018, the trial court adjudicated appellant guilty and assessed his punishment at thirty

- five years’ confinement. See T EX

. P ENAL C ODE A NN

. § 12.3 2 (a) (West 2011). On

October 18 , 2018, appellant timely filed a notice of appeal, and the trial court appointed Angela L. Cameron of the Harris County Public Defender’s Office as appellant’s appellate

counsel. See T EX

. R. A PP

. P. 26.2(a)(1).

On December 18 , 2018, t he appellate records were comp lete d after the f iling of the reporter’s record, after the clerk’s record was filed on December 17, 2018, and appellant’s brief was due by January 17, 2019

. See T EX

. R. A PP

. P. 38.6(a). Because appellant did not timely file a brief , t he Clerk of this Court ’s February 15, 2019 l ate

- brief notice n otifi ed appellant’s appointed counsel

, Angela L. Cameron

, that this case might be abated for a hearing pursuant to Rule of Appellate Procedure 38.8(b)(2), if either the brief or an

extension motion were not filed within ten days of that notice. Appellant ’s counsel failed to timely respond

.

Accordingly, the Court sua sponte abate s this appeal and remand s for the trial court to immediately conduct a hearing at which a representative of the Harris C ounty District Attorney’s Office and appellant’s counsel, Angela L. Cameron , shall be present. T EX

. R.

A PP . 38.8(b)(2). Appellant shall also be present for the hearing in person or, if appellant2

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

d irected to:

(1) make a finding on whether appellant wishes to prosecute th is appeal ; (2) if appellant does wish to prosecute th is appeal, determine whether counsel Angela L. Cameron Booker has abandoned th i s appeal; (3) if counsel Angela L. Cameron has not abandoned th is 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 is appeal and no later t han 30 days from the date of the hearing; (4) if Angela L. Cameron has abandoned th is appeal, enter a written order relieving Angela L. Cameron of h er duties as appellant’s counsel, including in the order the basis for the finding of abandonment, determine whe ther appellant is indigent, and:

a. if appellant is 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 app ellant 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 i s due in each case , regardless of whether this Court has yet

reinstated th i s appea l 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) ente r written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.

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 h er counsel shall be able to communicate privately without being recorded or heard by the trial court or the attorney representing the State

.3

See T EX

. C ODE C RIM

. P ROC

. A NN . art. 1.051(a), (d)(1), (f) (West 20 05 ); 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 factors relating to fair and orderly administration of justice); cf

. T EX

. C ODE C RIM

. P ROC

. A NN . art. 1.051(g) (requirin g 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 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 co ntaining the trial court’s findings and recommendations with this Court within 1 0 days of the date of the hearing. The court reporter is directed to file the reporter’s record of the hearing within

10 days of the date of the hearing. If the hearing is co nducted by video teleconference, a certified video recording of the hearing shall also be filed in this Court within 1 0 days of the date of this hearing.

If Angela L. Cameron files an extension motion and brief on appellant’s behalf in this Court and a copy of such brief in the trial court, and h er brief complies with Texas Rule of Appellate Procedure 38.1, no later than 10 days from the date of this order

, together with a moti on requesting that this Court withdraw this Order of Abatement, this

Court may reconsider and withdraw this O rder of Abatement and reinstate th i s appeal.

Th i s appeal i s abated, treated as a closed case, and removed from this Court’s active

docket. Th is a ppeal will be reinstated on this Court’s active docket when the supplemental clerk’s record and the reporter’s record , if any, are filed in this Court.

It is so ORDERED

. Judge’s signature: ___

/s/ Evelyn V. Keyes

______ x Acting individually Acting for the Court
Date: __ March 5, 2019

___