COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name: Success Irhirhi v. The State of Texas

Appellate case number: 01-14-00002-CR

Trial court case number: 1905854

Trial court: County Criminal Court at Law No. 9 of Harris County

The clerk’s record and reporter’s record in this appeal were originally due on January 21, 

2014. The clerk’s record was filed on January 22, 2014. On January 31, 2014 and September 15, 

2014, the Clerk of this Court notified appellant that the court reporter responsible for preparing 

the record in this appeal had informed the Court that appellant has not paid, or made 

arrangements to pay, for the reporter’s record. See TEX. R. APP. P. 35.3(b). The Clerk further 

notified appellant that unless he provided written evidence that he has paid, or made 

arrangements to pay, for the reporter’s record, or provided proof that he is entitled to proceed 

without payment of costs, the Court might consider the appeal without a reporter’s record. See 

TEX. R. APP. P. 37.3(c). Although represented by counsel, neither appellant nor his counsel 

responded to the notices. 

On January 8, 2015, the State Bar of Texas notified the Court that appellant’s trial and 

appellate counsel, John O. Mukoro, has been placed on active suspension from the practice of 

law for six months commencing on December 21, 2014. Therefore, appellant currently is not 

represented by counsel in this appeal.1

 

1 Although Mr. Mukoro filed appellant’s notice of appeal and appellant has a right to counsel of 

his choice, appellant is not entitled to delay this case until his counsel is removed from active 

suspension. See 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); 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.”).
Accordingly, we abate the appeal and remand the cause to the trial court to conduct a 

hearing at which a representative of the Harris County District Attorney’s Office shall be 

present. 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 use of a closed-circuit 

video teleconferencing system.

We direct the trial court to:

1) Determine whether appellant still wishes to pursue this appeal;

2) Determine whether appellant is now indigent, and 

a. if appellant is indigent, (i) appoint substitute appellate counsel at no cost 

to appellant and (ii) order the court reporter to file the reporter’s record in 

this case within 30 days of the date of the hearing, at no cost to appellant;

b. if appellant is not indigent, admonish appellant regarding the dangers and 

disadvantages of self-representation, and:

i. determine whether appellant is knowingly and intelligently 

waiving his right to counsel and (A) if so, obtain a written waiver 

of the right to counsel, or (B) if appellant does not wish to proceed 

pro se, provide a deadline of no more than 20 days from the date 

of the hearing by which appellant must hire substitute counsel; and

ii. provide a deadline of no more than 30 days from the date of the 

hearing by which appellant must provide written evidence

demonstrating payment of the reporter’s record and further notify 

appellant that failure to provide such evidence may result in 

consideration of his appeal without a reporter’s record.

3) Make any other findings and recommendations the trial court deems appropriate; 

and

4) Forward a record of the proceedings, together with any findings and orders 

regarding appellate representation.

See TEX. CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f), 26.04.

The trial court shall have a court reporter, or court recorder, record the hearing and file 

the reporter’s record with the Court no later than 30 days from the date of this order. 

Additionally, the trial court’s findings and recommendations and any orders issued pursuant to 

the hearing shall be included in a supplemental clerk’s record and filed in this Court 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 of the hearing 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: January 27, 2015