COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name: Korey Adeleye v. The State of Texas

Appellate case numbers: 01-10-00879-CR, 01-10-00880-CR, 01-10-00881-CR, and

01-10-00882-CR

Trial court case numbers: 1212111 and 1212112

Trial court: 337th District Court of Harris County, Texas

A motion to substitute counsel was filed by attorney Vivian King in appellate cause

numbers 01-10-00879-CR and 01-10-00880-CR. These appellate cause numbers are

assigned to the appeals of the trial court’s denial of Appellant’s application for writ of

habeas corpus filed in each of the two trial court cases. The motion stated that King has

been retained as appellant’s counsel on appeal and seeks to substitute King for appellant’s

court-appointed counsel Frances Northcutt. The motion to substitute was granted on June

17,2011.

King also filed a motion to substitute in appellate cause numbers 01-10-00881-CR

and 01-10-00882-CR. These appellate cause numbers have been assigned to the appeals

from the trial court’s judgment of conviction in each case. That motion also stated that

King is retained counsel on appeal and seeks to substitute for appellant’s court-appointed

counsel Frances Northcutt. That motion to substitute was granted on June 28, 2011

King filed a brief on behalf of Appellant on July 28, 2011 in appellate cause

numbers 01-10-00879-CR and 01-10-00880-CR, which are assigned to Appellant’s

appeals from the denial of habeas relief.

When asked by this Court’s clerk’ s office whether she would be filing a brief in the

other two appellate cause numbers (i.e., 01’- 10-00881-CR and 01-10-00882-CR, which are

assigned to the appeals from the judgments of conviction), King requested that those Cgus.e

numbers also be placed on the brief. However, a review of the brief revealed that it

contained no substantive discussion or arguments with respect to the trial court’s denial of

habeas relief. The brief also did not contain proper citations to the reporter’s record in

support of the first ssue identified the brief. As a result, Appellant’s brief was struck

by order dated June 25, 2012.
When contacted by this Court’s clerk’s office, King stated that she had been

retained to represent Appellant only in the appeals from the two judgments of conviction

(i.e., appellate cause numbers 01-10-00881-CR and 01-10-00882-CR). In a separate

telephone conversation, court-appointed attorney Frances Northcutt also stated that she

had been appointed only to represent Appellant in his appeals from the judgments of

conviction, not in the appeals from the denial of the habeas applications. The record is not

clear whether Northcutt was appointed to represent Appellant only in the appeals from the

judgments of conviction or whether she was also appointed to represent him in the appeals

from the denial of the habeas applications.

In short, the status of Appellant’s representation by counsel on appeal needs

clarification. For this reason, we withdraw and vacate both (1) the order dated June 17,

2011 .granting King’s motion to substitute counsel in appellate cause numbers

01-10-00879-CR and 01-10-00880-CR and (2) the order dated June 28, 2011 granting

King’s motion to substitute counsel in appellate cause numbers 01-10-00881-CR and

01-10-00882-CR.

Accordingly, we abate each of the four above-referenced appeals and remand for

the trial court to immediately conduct a hearing, with respect to each of the four appeals,

at which appellant,2 his counsel, Frances. Northcutt, and a representative of the Harris

We also note that pursuant to Code of Criminal Procedure article 26.04, a court-appointed

attorney shall "represent the defendant until charges are dismissed, the defendant is acquitted,

appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other

counsel after a finding of good cause is entered on the record." TEX. CODE CRIM. PROC. ANN. art.

26.040)(2). When an appellant files a motion requesting that the original court appointed

attorney be allowed to withdraw and that another attorney be substituted to pursue the appeal, the

Court of Criminal Appeals has explained that "it is fitting that a case should be abated to the trial

court for substitution of counsel," "[e]specially given the elaborate mechanism for making court

appointments for indigent criminal defendants that now xn place under Article 26.04." Meza v.

State, 206 S.W.3d 684, 688 (Tex. Crim. App. 2006) (citing with approval Enriquez v. State, 999

S.W.2d 906, 908 (Tex. App.---Waco 1999, order)). Thus, here, the appeals are appropriately

abated to permit the trial court to rule on appellant’s motions to withdraw court appointed counsel

and to substitute counsel. See Hernandez-Sandoval v. State, No. 07-11--00085-CR, 2011 WL

4478364, at * 1-2 (Tex. App.mAmarillo Aug. 31 2011, order).

2 Appellant shall be present for the hearing in person or, if appellant is incarcerated and at the

trial court’s discretion, appellant may participate the hearing by closed-circuit video

teleconferencing. 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, appellant and his counsel shall be able to

communicate privately without being recorded or heard by the trial court or the attorney

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County District Attorney’s Office shall be present. It would also be beneficial for

attorney Vivian King to be present at the hearing. The trial court shall have a court

reporter record the hearing.

With respect to each of the four appeals, the trial court is directed to make

appropriate findings and recommendations on these issues:

(1) whether appellant desires to pursue his appeal; and, if so,

(2) whether counsel, Frances Northcutt, should be allowed to withdraw;

and, if so,

(3) whether appellant has retained new counsel to file a brief and, if so, the

name, address, telephone number, and State Bar number of retained

counsel, see TE×. R. APP. P. 38.8(b)(4), or

(4) whether appellant is presently indigent, xn which case the trial court

should appoint appellate counsel at no expense to appellant, see TEX.

CODE CRIM. PROC. ANN. art. 26.04.

If the trial court finds that appellant does not wish to pursue the appeal, we shall

dismiss the appeal) See TEX. R. APP. P. 38.8(b)(4).

The trial court’s findings and recommendations shall be sent to this Court no

later than August 13, 2012. If the hearing is conducted by video teleconference, the trial

court’s findings and recommendations and a certified video recording of the hearing shall

be filed in this Court no later than August 13, 2012.

Each of the above-referenced appeals is abated, treated as a closed case, and

removed from this Court’s active docket. Each appeal will be reinstated on this Court’s

active docket when the trial court’s findings and recommendations, and the reporter’s

record, if any, are filed in this Court. At that time, a new appellate briefing schedule will

be set.

representing the State.

Attorneys Frances Northcutt and Vivian King have each questioned, in corresponding with

this Court’s clerk’ s office, the propriety of the filing of the applications for writ of habeas corpus

by former counsel. It would be beneficial for the trial court to discuss this issue with counsel at

the hearing and to determine whether appellant intends to pursue the appeals of the denial of the

habeas applications in appellate cause numbers 01-10-00879-CR and 01-10-00880-CR.

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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.

Justice’s signature:/s/Laura C. Higley

Acting individually

Date: July 13, 2012

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