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: Ismael Aguilar Alarcon v. The State of Texas

Appellate case number: 01

- 14

- 00760

- CR

Trial court case number: 1225411

Trial court: 185th District Cour t of Harris County

David Lawrence Garza was appointed to represent appellant on this appeal. On December 12, 2014, Garza filed a motion to withdraw along with a brief based on Anders v. California

, 386 U.S. 738 (1967), in which he opined there were no ar guable issues to appeal. The brief, however, was stricken by this Court as it contained sensitive information as defined in Texas Rule of Appellate Procedure 9.10(a)(3). Specifically, the brief identified by name and

home address the child victim of sexu al assault, along with the names of other minors. Therefore, there is currently no brief on file with the Court of Appeals on behalf of Alarcon. We have twice ordered Garza to refile a compliant brief with appropriate redactions and alias names (by order of December 16, 2014, and by order of January 22, 2015), and he has twice failed to comply.

As such, we abate this appeal and remand the case to the trial court for a hearing at which appellant and David Lawrence Garza shall be present in person. 1 The court coordinator of the trial court shall set a date for said hearing and notify the parties, including appellant. We direct the trial court to make appropriate written findings of fact and conclusions of law and to execute any necessary orders on these issues:

1) Whether appellant still wishes to pursue this appeal; 2) If so, determine whether David Lawrence Garza has abandoned this appeal and should be permitted to withdraw. If he is not permitted to withdraw, set a date certain by which he must file an app ellate brief compliant with the Texas Rules of

1 If appellant is now incarcera ted, he may appear by closed video teleconference. 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 tr ial court, appellant, and any attorneys representing the State or appellant. On request, appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the attorney representing the

State.Appellate Procedure on behalf of Alarcon . Any such deadline shall not be more than 10 days from the date of the abatement hearing ;

If Garza is permitted to withdraw, then:

3) Whether appellant is now indigent and entitled to appointed counsel; and, if indigent,

a. appoint counsel on appeal, and 4) If appellant is not indigent:

a. whether he has retained an attorney to file a brief, and, if so, obtain the name, address, and telephone number of retained counsel;

b. if appel lant has not retained counsel, the trial court shall admonish appellant of the dangers and disadvantages of self

- representation, and

i. determine whether appellant is knowingly and intelligently waiving his right to counsel; or,

ii. if appellant does not wish to proceed pro se, provide a deadline by which appellant must hire an attorney.

See T EX

. C ODE C RIM

. P ROC

. A NN . art. 1.051(a), (f); Oliver , 872 S.W.2d at 716; Minjares , 577 S.W.2d at 224; cf. T EX

. C ODE C RIM

. P ROC

. A NN . art. 1.051(g).

The trial court shall ha ve 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

this 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. If the hearing is conducted by video teleconference, a certified electronic copy of the hearing shall be filed in this C ourt 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 repo rter’s record of the hearing are filed in this Court.

It is so ORDERED.

Judge’s signature:

__

/s/ Rebeca Huddle

X Actin g individually  Acting for the Court

Date: February 12, 2015