Celvin Brooks v. State ( 2018 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Celvin Brooks v. The State of Texas
Appellate case number: 01-18-00175-CR
Trial court case number: 1515314
Trial court: 184th District Court of Harris County
On February 12, 2018, appellant, Celvin Brooks, was convicted by a jury of the
capital-felony offense of murder for which the jury assessed appellant’s punishment at life
confinement. The trial court certified that this was not a plea-bargain case, and that
appellant had the right to appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant’s trial counsel
timely filed a notice of appeal in each case and was granted leave to withdraw and the trial
court appointed the Harris County Public Defender’s Office as his appellate attorney. See
TEX. R. APP. P. 26.2(a)(1).
The complete records were filed in the above-referenced appeals on April 30, 2018,
with the filing of the last volumes of the reporter’s records, and appellant’s brief was due
by May 30, 2018. See TEX. R. APP. P. 38.6(a). This Court’s May 15, 2018 Order granted
the motion to substitute counsel filed by appellant’s appointed counsel, Jani J. Maselli
Wood, because David Booker had filed a notice of appearance as appellant’s retained
counsel, who was granted an extension of time until July 10, 2018, to file his brief. Because
appellant’s counsel did not timely file a brief, the Clerk of this Court’s July 27, 2018 late-
brief notice notified appellant’s counsel, David Booker, that this case might be abated for
a hearing pursuant to Rule of Appellate Procedure 38.8(b)(2), if either the brief or an
extension motion was not filed within ten days of that notice. Appellant’s counsel failed
to timely respond.
Accordingly, we 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, David Booker, 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
David Booker has abandoned this appeal;
(3) if counsel David Booker 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 David Booker has abandoned this appeal, enter a written order relieving
David Booker 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 brief is
due in each case, 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 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.
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
her counsel shall be able to communicate privately without being recorded or heard
by the trial court or the attorney representing the State.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (d)(1), (f) (West 2017); 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 10 days of the date of the
hearing. The court reporter is directed to file the reporter’s record of the hearing within
10 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 10 days of
the date of this hearing.
If David Booker files an extension motion and brief on appellant’s behalf in this
Court and a copy of such brief in the trial court, and his 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 this Order of Abatement, this Court may
reconsider and withdraw this order and reinstate this 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 reporter’s record, if any, are filed in this Court.
It is so ORDERED.
Judge’s signature: _/s/ Evelyn V. Keyes ______________________________________
 Acting individually Acting for the Court
Date: August 21, 2018