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Truong v. State

Court of Appeals of Texas, First District, Houston

September 7, 2017

Hung Dasian Truong
v.
The State of Texas

         339th District Court of Harris County Trial court case number: 1172979

          ORDER OF ABATEMENT

          Evelyn V. Keyes Judge.

         The complete record was filed in the above-referenced appeal on June 26, 2017, with the filing of the clerk's record, and appellant's brief was set to be due within 30 days of the filing of that record, or by July 26, 2017. Because appellant did not timely file a brief, the Clerk of this Court sent a late-brief notice on August 10, 2017, notifying appellant's appointed counsel, Staci Biggar, that this case would be abated for a hearing pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), if either the brief or an extension motion were not filed by August 21, 2017. Appellant failed to timely file a brief or extension request.

         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, Staci Biggar, 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 Staci Biggar has abandoned this appeal;
(3) if counsel Staci Biggar has not abandoned this appeal:
a. inquire of counsel the reasons, if any, that she 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 Staci Biggar has abandoned this appeal, enter a written order relieving Staci Biggar of her 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, 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 ...

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