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James v. State

Court of Appeals of Texas, First District, Houston

April 24, 2018

Demetrick James
v.
The State of Texas

          262nd District Court of Harris County, Trial court case number: 1510754

          SECOND ORDER OF ABATEMENT

          Laura C. Higley Judge

         This Court's March 6, 2018 Order on Motion had granted appellant's second motion for an extension of time to file appellant's brief until April 2, 2018. That Order had warned appellant's counsel that no further extensions would be granted, due to the total length of time requested, and that this case would be abated for a hearing, pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), if the brief was not filed by April 2, 2018. Because no brief was timely filed, the Clerk of this Court's April 11, 2018 notice warned appellant's counsel that, unless an extension request or appellant's brief was filed within ten days of that notice, this Court would abate this appeal. Nevertheless, appellant's retained counsel, Natalie Schultz, has not timely filed a brief or an extension.

         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, Natalie Schultz, 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 Natalie Schultz has abandoned this appeal;
(3) if counsel Natalie Schultz has not abandoned this appeal:
a. inquire of counsel the reasons, if any, that she has failed to file a brief 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 Natalie Schultz has abandoned this appeal, enter a written order relieving Natalie Schultz 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 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 ...

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