                                  COURT OF APPEALS FOR THE
                             FIRST DISTRICT OF TEXAS AT HOUSTON

                                               ORDER

Appellate case name:       William Edward Simmons v. The State of Texas

Appellate case number:     01-16-00817-CR

Trial court case number: 2058196

Trial court:               County Criminal Court at Law No. 10 of Harris County

        Proceeding pro se, appellant timely filed a notice of appeal of a judgment of conviction for
the misdemeanor offense of driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04 (West
2011). The clerk’s record was filed on December 2, 2016. On December 5, 2016, the Clerk of
this Court notified appellant that the court reporter had informed the Court that he had not made
arrangements to pay for the record and this Court’s records indicated that he was not appealing as
an indigent, and the Court might consider the appeal without a reporter’s record. When he did not
respond, we notified appellant that the Court would consider the appeal on the record filed in this
Court and ordered him to file a brief no later than April 27, 2017. On May 2, 2017, the Clerk of
this Court notified appellant that his brief was late and, absent a satisfactory response within 10
days, 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). Appellant has not responded.
       Rule 38.8(b) provides that in a criminal case an appellant’s failure to file a brief does not
authorize dismissal of the appeal or consideration of the appeal without briefs, unless the trial court
has found that the appellant (1) no longer desires to prosecute the appeal, or (2) is not indigent but
has not made the necessary arrangements for filing a brief. TEX. R. APP. P. 38.8(b)(1), (4).
Accordingly, we abate this appeal and remand the cause to the trial court for further proceedings
pursuant to rule 38.8(b).
       The trial court shall immediately conduct a hearing at which the appellant and a
representative of the Harris County District Attorney’s Office shall be present in person.1 The

1      If he is now incarcerated, appellant may appear by closed-circuit video teleconference. 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 his
       request, appellant and his counsel shall be able to communicate privately without being recorded
       or heard by the trial court or the State’s attorney.
court coordinator for the trial court shall set a date for the hearing and notify the parties, including
appellant. We direct the trial court to make appropriate written findings of fact and conclusions
of law and sign any necessary orders on these issues:
            1) Whether appellant wishes to pursue this appeal;
            2) If so, whether appellant is now indigent and entitled to appointed counsel; and, if
               indigent:
                   a. appoint appellate counsel at no expense to appellant; and
                   b. order the court reporter to file the reporter’s record with this Court at no
                       cost to appellant;
            3) If appellant is not indigent:
                   a. admonish appellant regarding the dangers and disadvantages of self-
                       representation, and determine whether appellant is knowingly and
                       intelligently waived his right to counsel and, if so, obtain a written waiver
                       of the right to counsel; or
                   b. if appellant does not wish to proceed pro se, provide a deadline by which
                       appellant must hire an attorney, which shall be no later than 30 days after
                       the date of the hearing.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f), 26.04; TEX. R. APP. P. 25.2(a)(2),
(d), (f), 34.5(a)(12), (c)(2), 37.1; Goffney v. State, 843 S.W.2d 583, 584–85 (Tex. Crim. App.
1992); Hawkins v. State, 613 S.W.2d 720, 722–23 (Tex. Crim. App. 1981); cf. TEX. CODE CRIM.
PROC. ANN. art. 1.051(g).
        The 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 the trial court’s findings and
recommendations with this Court no later than 25 days from the date of this order. See TEX. R.
APP. P. 34.5(c). The court reporter is directed to file the reporter’s record of the hearing no later
than 30 days from the date of this order. If the hearing is conducted by video teleconference, an
electronic copy of the hearing shall be filed in this Court no later than 30 days from 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 reporter’s record that comply with our order are filed with the Clerk of this Court. The court
coordinator of the trial court shall set a hearing date and notify the parties.
        It is so ORDERED.


Judge’s signature: /s/ Sherry Radack
                    Acting individually         Acting for the Court

Date: July 18, 2017
