Court of Appeals of Texas, First District, Houston
District Court of Harris County, No. 1540146
ORDER OF ABATEMENT
an agreed punishment recommendation, appellant, Ecknozzio
Okeith Fontenot, pleaded guilty to the felony offense of
aggravated robbery with a deadly weapon. The trial court
found appellant guilty and assessed his punishment at
confinement for eight years. Appellant timely filed a pro se
notice of appeal.
Clerk of this Court has examined the clerk's record and
has found that the certification of defendant's right to
appeal, which states that "the defendant has waived the
right of appeal, " may be defective. The record filed in
this Court does not reflect either a bargained-for waiver of
appellant's right of appeal or a waiver after appellant
was sentenced. See Washington v. State, 363 S.W.3d
589, 589 (Tex. Crim. App. 2012); Ex parte Broadway,
301 S.W.3d 694, 697-99 (Tex. Crim. App. 2009); Monreal v.
State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003).
Texas Rules of Appellate Procedure require us to dismiss an
appeal unless the record contains a written certification
showing that the appellant has the right of appeal.
See Tex. R. App. P. 25.2(d). The rules also permit
amendment of a defective certification and prohibit us from
dismissing an appeal based on the lack of a valid
certification. See id. 25.2(f), 44.4; see also
Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App.
the clerk's record filed in this Court reflects that
appointed counsel represented appellant in the trial court.
And appointed counsel continued to represent appellant until
March 19, 2018, when the trial court granted counsel's
motion to withdraw. See Tex. Code Crim. Proc. Ann.
art. 26.04(j)(2) (West Supp. 2016). The trial court, however,
but did not appoint counsel to represent appellant on appeal.
we abate the appeal, and remand the cause to the trial court
for further proceedings. The trial court shall immediately
conduct a hearing at which a representative of the Harris
County District Attorney's Office and appellant shall be
present. If appellant is incarcerated, at the trial
court's discretion, he may participate in the hearing by
closed-circuit video teleconferencing.
We direct the trial court to:
1. determine whether appellant wishes to prosecute his
2. make a finding regarding whether or not appellant has
the right of appeal and, if necessary, execute an amended
certification of appellant's right to appeal;
3. determine whether appellant is now indigent;
4. if appellant is indigent, appoint appellate counsel at
no expense to appellant;
5. if appellant is not indigent:
a. determine whether he has retained an attorney to file
a brief and, if so, obtain the name, address, and telephone
number of retained counsel;
b. if appellant has not retained counsel, admonish appellant
of the dangers of self-representation, and i. determine
whether appellant is knowingly and intelligently waiving his
right to counsel, or ii. if appellant does not wish to
proceed pro se, provide a deadline by which he must hire an
any other findings and recommendations the trial court deems
enter written findings of fact, conclusions of law, and
recommendations as appropriate, separate and apart from any
docket sheet notations.
See id. art. 1.051(a), (c), (d)(1), (f), 26.04;
Tex.R.App.P. 25.2(a)(2), (d), 34.5(c)(2); cf. Tex.
Code Crim. Proc. Ann. art. 1.051(g).
trial court shall have a court reporter, or court recorder,
record the hearing. The trial court clerk is directed to file
a supplemental clerk's record containing any amended
certification of appellant's right to appeal and any
findings, recommendations, and orders of the trial court with
this Court no later than 30 days from the date of this order.
See Tex. R. App. P. 34.5(c)(2). The court reporter
is directed to file the reporter's record of the hearing
within 30 days of the date of this order. If the hearing is
conducted by video teleconference, a certified recording of
the hearing shall also be filed in this Court within 30 days
of the date of this order.
appeal is abated, treated as a closed case, and removed from
this Court's active docket. The court coordinator of the