                                 COURT OF APPEALS FOR THE
                            FIRST DISTRICT OF TEXAS AT HOUSTON

                                 ORDER OF ABATEMENT

Style:                       Larry F. Erneston v. The State of Texas
Appellate case number:       01-11-00845-CR
Trial court:                 County Court at Law No. 2, Fort Bend County, Texas
Trial court case number:     98-CCR-077087

       The complete record has been filed in the above-referenced appeal. Appellant’s
retained counsel, Kathryn Shepherd, has not filed a brief on appellant’s behalf. Appellant’s
brief was due on March 28, 2012. On April 24, 2012, the Clerk of this Court notified
appellant that a brief had not yet been filed and required that a response be filed within 10
days. On May 2, 2012, the late brief notification was returned to the Clerk marked “Not
able to deliver; unable to forward.” In response to an inquiry from the Clerk, the firm that
Shepherd indicated she was affiliated with informed the Clerk that Shepherd was not with
the firm any longer and that the firm had no forwarding information for Shepherd.

        We therefore abate the appeal and remand for the trial court to immediately conduct
a hearing at which a representative of the Fort Bend County District Attorney’s Office and
appellant’s counsel Kathryn Shepherd 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 If Shepherd fails to appear for the hearing, the trial court shall proceed
with the hearing without Shepherd in attendance.

       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 does wish to prosecute the appeal, determine whether Kathryn
           Shepherd has abandoned the appeal;
       (3) if counsel Kathryn Shepherd has not abandoned the appeal:
              a. inquire of counsel the reasons, if any, that she has failed to file a brief on
                 appellant’s behalf;
              b. determine whether appellant has paid counsel’s fee for preparing an

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.
                 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 Kathryn Shepherd has abandoned this appeal, enter a written order relieving
           Kathryn Shepherd of her duties as appellant’s counsel, including in the order
           the basis for the finding of abandonment, and:
              a. determine whether appellant wishes to hire another attorney, and if so,
                 provide a deadline by which appellant must hire an attorney; or,
              b. if appellant does not wish to hire another attorney, admonish appellant of
                 the dangers and disadvantages of self-representation, and 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,
              c. if appellant now claims to be indigent, determine whether appellant is
                 indigent and if appellant is indigent, appoint substitute appellate counsel
                 at no expense to appellant.
       (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.

See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (d)(1), (f) (West Supp. 2011); TEX. R. APP.
P. 38.8(b).

        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
by 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.

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       It is so ORDERED.

Judge’s signature: /s/ Justice Evelyn V. Keyes
                 Acting individually        Q Acting for the Court

Date: June 15, 2012




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