Timothy Dynell George v. State ( 2016 )


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  •                               COURT OF APPEALS FOR THE
    FIRST DISTRICT OF TEXAS AT HOUSTON
    SECOND ORDER OF CONTINUING ABATEMENT
    Appellate case name:        Timothy Dynell George v. The State of Texas
    Appellate case number:      01-15-00128-CR
    Trial court case number:    1431234
    Trial court:                185th District Court of Harris County
    On March 10, 2016, after this appeal had been abated for a late-brief hearing, the
    abatement hearing record was filed in this Court. During this hearing, the trial judge, the
    Honorable Susan Brown, recounted the trial court coordinator’s difficulties over the past
    several months in trying to locate either appellant’s counsel, Robert T. Wallace, or
    appellant, Timothy Dynell George. At the end of the hearing, the trial judge noted that if
    appellant “resurfaces, the Court will certainly make every effort to determine where he
    stands with this appeal and appoint counsel to continue the appeal, if necessary.”
    On March 15, 2016, this Court’s Order of Continuing Abatement abated and
    remanded for the trial court to enter findings of fact and conclusions of law regarding
    whether to relieve counsel of his duties and whether the appellant had abandoned this
    appeal, for purposes of this Court moving forward to decide this appeal without briefs.
    See TEX. R. APP. P. 38.8(b)(4).
    On March 21, 2016, the supplemental clerk’s record was filed in this Court and
    contains a docket sheet entry referring to the above abatement hearing held on March 10,
    2016, but it did not contain the requested findings and conclusions. Rule 44.4 states that
    an appellate court must not affirm a judgment or dismiss an appeal if the trial court can
    correct its action or failure to act. See TEX. R. APP. 44.4(a)(2).
    After reviewing the district clerk’s website, it appears that appellant was indicted
    on May 24, 2016, in two new cases, trial court cause numbers 1505539 and 1505540,
    both of which are pending in the 184th District Court of Harris County before the
    Honorable Jan Krocker. Thus, because it appears that appellant has resurfaced and can
    be located now for a late-brief hearing, and because the trial judge continues to serve on
    the district court, the error in this case is remediable. See TEX. R. APP. 44.4(a).
    Accordingly, we sua sponte continue to abate this 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, Robert T. Wallace, if he can be
    located, shall be present. TEX. R. APP. 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 video teleconferencing.1
    The trial court shall have a court reporter record the hearing. The trial court is
    directed to:
    (1) make a finding on whether appellant wishes to prosecute this appeal;
    (2) if appellant does wish to prosecute this appeal, determine whether counsel
    Robert T. Wallace has abandoned this appeal;
    (3) if counsel Robert T. Wallace has not abandoned this appeal:
    a.     inquire of counsel the reasons, if any, that 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 this appeal and no later than 30
    days from the date of the hearing;
    (4) if Robert T. Wallace cannot be located or has abandoned this appeal, enter a
    written order relieving Robert T. Wallace of his 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 still indigent, appoint substitute appellate counsel at no
    expense to appellant;
    b.     if appellant is not indigent and wishes to proceed pro se, 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
    ii. determine whether any decision by appellant to proceed pro se is
    in the best interest of appellant, the State, and the administration
    of justice; and
    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 trial court or the attorney representing the State.
    iii. if so, obtain a written waiver of the right to counsel and set a date
    certain when appellant’s brief will be due, regardless of whether
    this Court has yet reinstated this appeal and no later than 30 days
    from the date of the hearing; or
    iv. 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) enter written findings of fact, conclusions of law, and recommendations as to
    these issues, separate and apart from any docket sheet notations.
    See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (d)(1), (f) (West Supp. 2016); TEX. R.
    APP. 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. TEX. CODE CRIM. PROC. ANN.
    art. 1.051(g) (requiring 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 containing
    the trial court’s findings and recommendations with this Court within 30 days of the date
    of the hearing. The court reporter is directed to file the reporter’s record of the hearing
    within 30 days of the date of the hearing. If the hearing is conducted by video
    teleconference, a certified video recording of the hearing shall also be filed in this Court
    within 30 days of the date of this hearing.
    This appeal is abated, treated as a closed case, and removed from this Court’s
    active docket. This appeal will be reinstated on this Court’s active docket when the
    supplemental clerk’s record and the supplemental reporter’s record, if any, are filed in
    this Court. If the trial court finds that appellant no longer desires to prosecute this appeal,
    via written order, this Court may move forward to consider and decide this appeal
    without a brief from appellant. See TEX. R. APP. P. 38.8(b)(4).
    It is so ORDERED.
    Judge’s signature: /s/ Laura Carter Higley
     Acting individually
    Date: October 20, 2016
    

Document Info

Docket Number: 01-15-00128-CR

Filed Date: 10/20/2016

Precedential Status: Precedential

Modified Date: 10/21/2016