                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                   ORDER OF ABATEMENT

Appellate case name:         Wydell Dixon v. The State of Texas

Appellate case numbers:      01-13-00408-CR; 01-13-00409-CR; 01-13-00410-CR;
                             01-13-00411-CR

Trial court case numbers: 12CR0748; 12CR0749; 12CR0750; 12CR0751

Trial court:                 56th District Court of Galveston County

       The complete record has been filed in the above-referenced appeals since July 18,
2013. Appellant’s retained counsel, R. Scott Shearer, has not filed a brief on appellant’s
behalf. Appellant’s brief was first due on August 19, 2013. On September 13 and
September 19, 2013, the Clerk of this Court notified appellant that a brief had not yet
been filed in any of these appeals and required that a response be filed within 10 days.
Appellant responded on September 30, 2013, by requesting a 60-day extension of time.
That same day, this Court granted the motion and ordered appellant to file his brief by
October 18, 2013. On November 20, 2013, the Clerk of this Court again notified
appellant that a brief had not yet been filed and required that a response be filed within 10
days. Nevertheless, appellant has neither responded to the second notice nor filed a brief.

       We therefore 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, R. Scott Shearer, 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 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.
       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 counsel R.
          Scott Shearer has abandoned the appeal;
      (3) if counsel R. Scott Shearer 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 R. Scott Shearer has abandoned this appeal, enter a written order relieving
          R. Scott Shearer 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. 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 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 clerk is directed to file a supplemental clerk’s record containing the
trial court’s findings and recommendations with this Court within 30 days of the date of
this order. The court reporter is directed to file the reporter’s record of the hearing within
30 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 30 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/ Chief Justice Sherry Radack
                  Acting individually  Acting for the Court


Date: February 4, 2014
