                                  COURT OF APPEALS FOR THE
                             FIRST DISTRICT OF TEXAS AT HOUSTON

                                         ORDER OF ABATEMENT

Appellate case name:       Michael Shane Sanders v. The State of Texas

Appellate case number:     01-13-00224-CR

Trial court case number: 68774

Trial court:               149th District Court of Brazoria County

       The complete record has been filed in the above-referenced appeal. Appellant’s retained
counsel, Mark Aronowitz, has not filed a brief on appellant’s behalf. Appellant’s brief was first
due on July 20, 2013. On July 24, 2013, the Clerk of the Court notified appellant that a brief had
not yet been filed and required a response within 10 days. See TEX. R. APP. P. 38.8(b)(2).
Appellant did not respond.

        We therefore abate the appeal and remand for the trial court to immediately conduct a
hearing at which a representative of the Brazoria County District Attorney’s Office and
appellant’s counsel, Mark Aronowitz, 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 is directed to:

       (1) make a finding on whether appellant wishes to prosecute the appeal;
       (2) if appellant does wish to prosecute the appeal, determine whether counsel Mark
           Aronowitz has abandoned the appeal;
       (3) if counsel Mark Aronowitz 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;


1      Any such teleconference must use a closed-circuit video teleconferencing system that
       provides for a simultaneous compressed full motion video and interactive communication
       of image and sound between the trial court, appellant, and any attorneys representing the
       State or appellant. On request of appellant, appellant and his counsel shall be able to
       communicate privately without being recorded or heard by the trial court or the attorney
       representing the State.
               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 certain 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 Mark Aronowitz has abandoned this appeal, enter a written order relieving Mark
           Aronowitz 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 certain 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; or,
                      ii. if appellant does not wish to proceed pro se, provide a deadline by
                          which appellant must hire an attorney;
       (5) make any other findings and recommendations the trial court deems appropriate; and
       (6) enter written findings of fact, conclusions of law, and recommendations as to these
           issues, separate and apart from any docket sheet notations.

See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (d)(1), (f) (West Supp. 2012); TEX. R. APP. P.
38.8(b); Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003) (stating that
presumption in favor of right to choice of counsel may be overridden by other factors relating to
fair and orderly administration of justice); Webb v. State, 533 S.W.2d 780, 784, 785 (Tex. Crim.
App. 1976) (stating that criminal defendant may not manipulate right to choose counsel so as to
interfere with fair administration of justice; “The trial court should therefore admonish an
accused who desires to represent himself regarding the wisdom and practical consequences of
that choice.”); Carter v. State, No. 01-95-00977-CR, 1997 WL 184385, *1 (Tex. App.—Houston
[1st Dist.] April 17, 1997, pet. ref’d) (not designated for publication) (“Thus, the public interest
in the fair and orderly administration of justice may be greater than an accused’s right to have
counsel of his own choice.”); cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g) (requiring trial court
to advise defendant of dangers and disadvantages of self-representation prior to proceeding to
trial), 26.04(j)(2) (authorizing trial court to order appointed counsel to withdraw after finding of
good cause is entered on record).

        The trial court shall have a court reporter record the hearing and file the reporter’s record
with this Court within 25 days of the date of this order. The trial court clerk is directed to file a
supplemental clerk’s record containing the trial court’s findings and recommendations with this
Court within 25 days of the date of this order. If the hearing is conducted by video
teleconference, a certified video recording of the hearing shall also be filed in this Court within
25 days of the date of this order.
        The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental
clerk’s record and the reporter’s record are filed in this Court. The court coordinator of the trial
court shall set a hearing date and notify the parties and the Clerk of this Court of such date.

       It is so ORDERED.


Judge’s signature: /s/ Laura C. Higley
                    Acting individually      Acting for the Court

Date: October 22, 2013
