Adrian Gomez v. State ( 2016 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Adrian Gomez v. The State of Texas
Appellate case number: 01-15-00383-CR
Trial court case number: 1405348
Trial court: 180th District Court of Harris County
On April 2, 2015, after appellant, Adrian Gomez, was convicted following a jury
trial of the capital-felony offense of capital murder, for which the State did not seek the
death penalty, the trial court assessed his punishment at life imprisonment without parole.
See TEX. PENAL CODE ANN. §§ 12.31(a)(2), 19.03(a)(2), (b) (West Supp. 2015). On
April 2, 2015, appellant, through counsel, timely filed a notice of appeal from the
judgment of conviction by jury. See TEX. R. APP. P. 26.2(a)(1). The trial court certified
appellant’s right of appeal because this was not a plea-bargain case, and appointed Juan
Terrence A. Gaiser as appellate counsel. See id. 25.2(a)(2).
On October 20, 2015, this Court granted appellant’s counsel’s second motion for
extension of time to file appellant’s brief, which he attempted to timely file on October
30, 2015. On October 30, 2015, the Clerk of this Court notified appellant’s counsel that
appellant’s brief was rejected because it was not PDF searchable as required by the rules,
and requested re-filing of the brief by November 3, 2015. See TEX. R. APP. P. 9.4(j).
Because appellant did not timely file an amended brief by November 3, 2015, the
Clerk of this Court sent a late-brief notice on December 30, 2015, notifying appellant’s
appointed counsel that this case would be abated for a hearing pursuant to Texas Rule of
Appellate Procedure 38.8(b)(2), if his amended brief was not filed within 10 days of that
notice. Nevertheless, appellant’s counsel, Terrence A. Gaiser, has not timely filed an
amended brief or extension request for appellant.
We therefore sua sponte 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, Terrence A. Gaiser, 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
Terrence A. Gaiser has abandoned this appeal;
(3) if counsel Terrence A. Gaiser has not abandoned this appeal:
a. inquire of counsel the reasons, if any, that he has failed to file an
amended brief on appellant’s behalf; and
b. set a date certain when appellant’s amended 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 Terrence A. Gaiser has abandoned this appeal, enter a written order
relieving Terrence A. Gaiser 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 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 counsel and set a date certain when appellant’s briefs
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 which appellant must hire a new 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.
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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.
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See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (d)(1), (f) (West Supp. 2015); 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 and electronically recorded, a certified video recording of the hearing shall
also be filed in this Court within 30 days of the date of this hearing.
If Terrence A. Gaiser files an extension motion and amended brief on appellant’s
behalf in this Court and a copy of such brief in the trial court, which brief complies with
Texas Rules of Appellate Procedure 9.4(j) and 38.1, no later than 10 days from the
date of this Order, together with a motion requesting that we withdraw this Order of
Abatement, we may reconsider and withdraw this Order and reinstate the appeal.
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, that comply
with this Order, are filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley
 Acting individually  Acting for the Court
Date: January 21, 2016
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