                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                   ORDER OF ABATEMENT

Appellate case name:         Thurston Rickey-Lee Davis v. The State of Texas

Appellate case number:       01-18-00858-CR

Trial court case number:     1571123

Trial court:                 230th District Court of Harris County

        On August 30, 2018, appellant, Thurston Rickey-Lee Davis, filed a notice of appeal
from the August 30, 2018 judgment of conviction following a jury trial of the first-degree
felony offense of aggravated robbery with a deadly weapon for which the trial court
assessed appellant’s punishment at twenty-five years’ confinement. The trial court
certified that this was not a plea-bargain case, and that appellant had the right to appeal,
and it appointed Natalie L. Schultz as counsel for appellant. See TEX. R. APP. P. 25.2(a)(2).
This Court’s December 17, 2018 notice informed appellant’s appointed counsel that it had
granted her first motion for an extension of time to file appellant’s brief until January 16,
2019. Then this Court’s January 17, 2019 Order granted the second extension request to
file appellant’s brief until February 15, 2019, by new counsel, Garrick A. Farria.

       Because appellant did not timely file a brief, the Clerk of this Court sent a late-brief
notice on March 7, 2019, notifying appellant’s retained counsel, Garrick A. Farria, and
appointed counsel, Natalie L. Schultz, that this case might be abated for a hearing pursuant
to Texas Rule of Appellate Procedure 38.8(b)(2), if either the brief or an extension motion
was not filed within 10 days of that notice. This Court’s March 19, 2019 Order granted
the construed motion for substitution of counsel filed by appointed counsel, Natalie L.
Schultz, and directed the Clerk of this Court to remove Ms. Schultz as counsel and to
designate Mr. Farria as lead counsel. Nevertheless, counsel has neither timely filed a brief
nor a second extension request on appellant’s behalf.

      The Court therefore sua sponte abates this appeal and remands for the trial court
to immediately conduct a hearing at which a representative of the Harris County District
Attorney’s Office and appellant’s retained counsel, Garrick A. Farria, 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 shall have a court reporter record the hearing. The trial court is
directed to:

       (1) make a finding on whether appellant wishes to prosecute this appeal;
       (2) if appellant does wish to prosecute this appeal, determine whether counsel
           Garrick A. Farria has abandoned this appeal;
       (3) if counsel Garrick A. Farria has not abandoned this appeal:
              a.     inquire of counsel the reasons, if any, that he has failed to file a brief
                     on appellant’s behalf; and
              b.     set a date certain when appellant’s brief will be due, regardless of
                     whether this Court has yet reinstated this appeal and no later than 30
                     days from the date of the hearing;
       (4) if Garrick A. Farria has abandoned this appeal, enter a written order relieving
           Garrick A. Farria 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 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 briefs
                         are due, regardless of whether this Court has yet reinstated this
                         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 a new appellate 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.




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.

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See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (d)(1), (f) (West 2005); 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); 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 coordinator of the trial court shall set a hearing date no later than 30 days from
the date of this order and notify the parties and the Clerk of this Court of such date. 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 15 days of the date of the hearing.
The court reporter is directed to file the reporter’s record of the hearing within 15 days of
the date of the hearing. If the hearing is conducted by video teleconference and
electronically recorded, a certified video recording of the hearing shall also be filed in this
Court within 15 days of the date of this hearing.

       If Garrick A. Farria files an extension motion or a brief on appellant’s behalf in
this Court, and a copy of such brief in the trial court, which brief complies with Texas Rule
of Appellate Procedure 38.1, no later than 10 days from the date of this Order, with a
motion requesting that the Court withdraw this Order of Abatement, this Court may
reconsider and withdraw this Order and reinstate the appeal.

        This appeal is abated, treated as a closed case, and removed from this Court’s active
docket. This appeal will be reinstated on this Court’s active docket when the supplemental
clerk’s record and the supplemental reporter’s record, if any, that comply with this Order,
are filed in this Court.

       It is so ORDERED.
Judge’s signature: _/s/ Evelyn V. Keyes_________________________
                   ☒ Acting individually      Acting for the Court
Date: __March 26, 2019___




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