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Barnes v. State

Court of Appeals of Texas, First District, Houston

November 21, 2019

Adrian Barnes
v.
The State of Texas

          290th District Court of Harris County, Trial court case number: 1494270

          ORDER

          JULIE COUNTISS JUDGE.

         Appellant's retained counsel, Alexander J. Houthuijzen, has not filed a brief on appellant's behalf. Appellant's brief was due on September 30, 2019. See Tex. R. App. P. 38.6(a). On October 3, 2019, the Clerk of this Court notified appellant's counsel that a brief had not been filed and, unless appellant filed a motion requesting an extension of time along with appellant's brief or a motion to extend time to file appellant's brief by October 14, 2019, the Court might be required to order the trial court to conduct a hearing pursuant to rule 38.8. See Tex. R. App. P. 38.8(b)(2), (3). Counsel has not filed a brief on appellant's behalf.

         Accordingly, we abate the 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, Alexander J. Houthuijzen, shall be present. See 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 the appeal;
(2) if appellant wishes to prosecute the appeal, determine whether appellant's counsel, Alexander J. Houthuijzen, has abandoned the appeal;
(3) if appellant's counsel, Alexander J. Houthuijzen, has not abandoned the appeal:
a. inquire of counsel the reasons, if any, that he has failed to file a brief on appellant's behalf;
b. determine whether appellant has paid counsel's fee for preparing an appellate brief and determine whether appellant has made any other necessary arrangements for filing a brief; and c. set a date when appellant's brief is due, regardless of whether this Court has yet reinstated the appeal and no later than 30 days from the date of the hearing;
(4) if appellant's counsel, Alexander J. Houthuijzen, has abandoned this appeal, enter a written order relieving him 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 now 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 when appellant's brief is due, regardless of whether this Court has yet reinstated the ...

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