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Barnes v. State

Court of Appeals of Texas, First District, Houston

December 5, 2019

Adrian Barnes
v.
The State of Texas

          290th District Court of Harris County No. 1494270.

          ORDER OF CONTINUING ABATEMENT

          Julie Countiss Judge.

         Appellant, Adrian Barnes, has filed a notice of appeal of the trial court's judgment signed on June 14, 2019, adjudicating appellant guilty of the felony offense of burglary of a habitation and assessing his punishment at confinement for five years. 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 did not file a brief on appellant's behalf.

         On November 21, 2019, the Court abated appellant's appeal and remanded the case to 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, were to be present. See Tex. R. App. 38.8(b)(2). Appellant was also to be present for the hearing in person or, if appellant was incarcerated, at the trial court's discretion, appellant could participate in the hearing by closed-circuit video teleconferencing.[1] Further, the trial court was to have a court reporter record the hearing. And the trial court was directed to:

(1) make a finding on whether appellant wished to prosecute the appeal;
(2) if appellant wished to prosecute the appeal, determine whether appellant's counsel, Alexander J. Houthuijzen, had abandoned the appeal;
(3) if appellant's counsel, Alexander J. Houthuijzen, had not abandoned the appeal:
a. inquire of counsel the reasons, if any, that he had failed to file a brief on appellant's behalf;
b. determine whether appellant had paid counsel's fee for preparing an appellate brief and determine whether appellant had made any other necessary arrangements for filing a brief; and c. set a date when appellant's brief was to be due, regardless of whether this Court had yet reinstated the appeal and no later than 30 days from the date of the trial court's hearing;
(4) if appellant's counsel, Alexander J. Houthuijzen, had 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 had knowingly and intelligently waived his right to counsel and, if so, obtain a written waiver of the right to counsel and set a date when appellant's brief was to be due, regardless of whether this Court had yet reinstated the appeal and no later than 30 days from the date of the trial court's hearing; or,
ii. if appellant did not wish to proceed pro se, provide a deadline by which appellant was to hire an attorney, which must be no more than ...

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