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: Zachary Keith Hill v. The State of Texas

Appellate case number: 01

- 1 4

- 00 94 5

- CR

Trial court case number: 1 2 81596

Trial court: 263rd Judicial District Court of Harris County

On March 3, 2015, this Court denied appellant’s motion for an extension of time to file appellant’s brief without prejudice to refiling the motion after the clerk’s record
was filed. On March 13, 2015, t he record in this appeal was complete d with the filing of

the clerk’s record in this Court, and the Clerk of this Court sent out notice that a ppellant’s

brief was to be due within 30 days of th e filing of the clerk’s record, or by April 1 3 , 201 5

. Because appellant did not timely file a brief by April 13, 201 5 , the Clerk of this Court

sent a late brief notice on April 27 , 2015 , notif ying appellant ’s retained counsel , Edward

Mathew Hen n essy, that th i s case w ould be abated for a hearing pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), if either his brief or extension motion w ere not filed within 10 days of th at notice. Nevertheless, appellant’s counsel, Edward Mathew

Hen n essy , has not timely filed a brief or extension request on appellant’s behalf.

We therefore 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 Office and appellant’s counsel, Edward Mathew Hennessy , 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 vid eo teleconferencing. 1

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 his counsel shall be able to communicate privately without being recorded or heard by the tr ial court or the attorney representing the State.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 ; (2) if appellant does wish to prosecute th i s appeal , determine whether counsel Edward Mathew Hennessy has abandoned th i s appeal ; (3) if counsel Edward Mathew Hennessy has not abandoned th i s appeal :

a. inquire of counsel the reasons, if any, that he has failed to file a brief 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 Edward Mathew Hennessy has abandoned th i s appeal , enter a written order relieving Edward Mathew Hennessy of h is 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 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 couns el and set a date certain when 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 whi ch appellant must hire a n ew appellate attorney; (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 T EX

. C ODE C RIM

. P ROC

. A NN . art. 1.051(a), (d)(1), (f) (West Supp. 201 4 ); 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 ma y 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) (requiring trial court to advise defendant of dangers and disadvantages of

self

- representation prior to proceeding to tri al), 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 not ify 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 the3

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 and electronically recorded , a certified video recording of the hearing shall

als o be filed in this Court within 30 days of the date of this hearing

.

If Edward Mathew Hennessy 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 10 days from the date of this

Order

, together with a motion requesting that we withdraw t his Order of Abatement, we may reconsider and withdraw this O rder 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 th e supplemental clerk’s record and the supplemental reporter’s record , if any, t h at comply with this Order, are filed in this Court.

It is so ORDERED

.

Judge’s signature: / s/ Laura Carter Higley

 Acting individually  Acting for the Court

Date: M ay 28, 2015