Keisha Eulette v. State of Texas ( 2012 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Keisha Eulette v. State of Texas
Appellate case number: 01-10-00068-CR
Trial court case number: 127550
Trial court: County Court at Law No. 2 of Fort Bend County
Appellant pleaded guilty to the misdemeanor offense of driving while intoxicated, and
the trial court granted appellant permission to appeal. Appellant timely filed a pro se notice of
appeal and is proceeding pro se in this Court.
Appellant was represented in the trial court by Samuel Knight. Trial counsel, retained or
appointed, has a duty to represent the client throughout the appellate process in a criminal case
until permitted to withdraw by the trial court. See Ex parte Axel, 757 S.W.2d 369, 374 (Tex.
Crim. App. 1988) (en banc). The record does not reflect that counsel filed a motion to withdraw,
that such a motion was granted, or that counsel was removed from the case prior to the appeal in
this case. In addition, the record does not reflect that appellant has been admonished regarding
the dangers and disadvantages of self-representation or that appellant has executed a written
waiver of the right to counsel. See TEX. CRIM. PROC. ANN. art. 1.051(a), (f) (West Supp. 2011)
(granting right to representation by counsel in criminal matters; authorizing written waiver of
right to counsel if made voluntarily and intelligently); cf. TEX. CODE CRIM. PROC. ANN. art.
1.051(g) (requiring that trial court advise the defendant of dangers and disadvantages of self-
representation prior to proceeding to trial).
Accordingly, we abate this appeal and remand the case to the trial court for a hearing at
which a representative of the Fort Bend County District Attorney’s office, appellant’s trial
counsel Samuel Knight, and appellant shall be present in person. The court coordinator of the
trial court shall set a date for said hearing and notify the parties, including appellant. If appellant
is now incarcerated, she may appear by closed video teleconference.1 We direct the trial court to
make appropriate written findings of fact and conclusions of law and to execute any necessary
orders with respect to the following matters:
1) The court shall determine whether appellant still wishes to pursue this appeal;
2) If so, the court shall determine whether Samuel Knight intends to represent
appellant on appeal; and
a. If so, the court shall set a date certain when appellant’s brief is due,
regardless of whether this Court has yet reinstated the appeal, no later than
30 days from the date of the hearing; or
b. If not, the court shall determine whether Samuel Knight should be
permitted to withdraw;
3) If Samuel Knight is not permitted to withdraw, the court shall set a date certain
when appellant’s brief is due, regardless of whether this Court has yet reinstated
the appeal, no later than 30 days from the date of the hearing;
4) If Samuel Knight is permitted to withdraw;
a. The court shall determine whether appellant is now indigent and, if
appellant is indigent, the court shall appoint counsel on appeal and set a
date certain when appellant’s brief is due, regardless of whether this Court
has yet reinstated the appeal, no later than 30 days from the date of the
hearing; or
b. if appellant is not indigent, the court shall determine whether appellant has
retained another attorney to file a brief, and
i. if so, the court shall obtain the name, address, and telephone
number of retained counsel and set a date certain when appellant’s
brief is due, regardless of whether this Court has yet reinstated the
appeal, no later than 30 days from the date of the hearing; or
ii. if appellant has not retained counsel, the court shall admonish
appellant of the dangers and disadvantages of self-representation,
and
1. the court shall determine whether appellant is knowingly
and intelligently waiving her right to counsel, and, if so, it
shall obtain a written waiver of the right to counsel and
provide appellant with a copy of a written order setting a
date certain when appellant’s brief is due, regardless of
whether this Court has yet reinstated the appeal, no later
than 30 days from the date of the hearing; or
2. if appellant does not wish to proceed pro se, the court shall
provide a deadline by which appellant must hire an attorney
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, 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.
no later than 30 days from the date of the hearing.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d), (f), 26.04 (West Supp. 2011); cf. TEX.
CODE CRIM. PROC. ANN. art. 1.051(g).
The trial court shall have a court reporter, or court recorder, record the hearing and file
the reporter’s record with this Court no later than 30 days from the date of this order.
Additionally, the trial court’s findings and recommendations and any orders issued pursuant to
this hearing shall be included in a supplemental clerk’s record and filed in this Court no later
than 30 days from the date of this order. If the hearing is conducted by video teleconference,
a certified electronic copy of the hearing shall be filed in this Court no later than 30 days from
the date of this order.
The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental
clerk’s record and reporter’s record of the hearing are filed in this Court. 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.
Judge’s signature: Evelyn V. Keyes
 Acting individually  Acting for the Court
Date: July 11, 2012