                                 COURT OF APPEALS FOR THE
                            FIRST DISTRICT OF TEXAS AT HOUSTON

                                              ORDER

Appellate case name:      Francisco Ayala v. The State of Texas

Appellate case number:    01-13-00393-CR

Trial court case number: 1820869

Trial court:              County Criminal Court at Law No. 9 of Harris County

        Appellant’s retained counsel, H. William Johnson, has not filed a brief on appellant’s
behalf. The clerk’s record was filed in the above-referenced appeal on August 28, 2013. On
September 10, 2013, the Clerk of this Court notified appellant that the court reporter responsible
for preparing the record in the appeal had informed the Court that appellant had not paid or made
arrangements to pay for the record and, that unless appellant caused the reporter’s record to be
filed in the Court, paid or made arrangements to pay for the reporter’s record, or provided proof
that he is entitled to proceed without payment of costs by October 10, 2013, the Court might
consider the appeal without a reporter’s record. Appellant did not adequately respond; therefore,
we ordered appellant to file his appellant’s brief in this Court no later than January 2, 2014. See
TEX. R. APP. P. 38.6(a). On February 11, 2014, the Clerk of this Court notified appellant’s
counsel, H. William Johnson, that a brief had not been filed and, unless appellant filed a brief
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’s counsel has not filed a response or 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, H. William Johnson, 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


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 appellant’s request, appellant and his counsel shall be able to
       communicate privately without being recorded or heard by the trial court or the attorney
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       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 counsel H. William
           Johnson has abandoned the appeal;
       (3) if counsel H. William Johnson 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 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 H. William Johnson has abandoned this appeal, enter a written order relieving H.
           William Johnson 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, which must be no more than 30
                          days from the date of the hearing;
       (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. 2013); 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


       representing the State.
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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) (West Supp. 2013) (authorizing trial court to order appointed counsel to
withdraw after finding of good cause is entered on record).

        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 30 days from the date of this
order. 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, a certified
video recording of the hearing shall also 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 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/ Terry Jennings
                    Acting individually       Acting for the Court


Date: May 20, 2014




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