                                 COURT OF APPEALS FOR THE
                            FIRST DISTRICT OF TEXAS AT HOUSTON

                                 ORDER OF ABATEMENT

Style:                       Jorge Rubio Mendoza v. The State of Texas
Appellate case number:       01-11-00940-CR
                             01-11-00941-CR
Trial court:                 184th District Court, Harris County, Texas
Trial court case number:     1251411 & 1251412

       Appellant was convicted of the offense of indecency with a child. Appellant’s trial
counsel, John McDermott, timely filed notices of appeal, together with motions to
withdraw and requests for a free record on appeal. The trial court’s certification of
appellant’s right of appeal correctly states this is not a plea-bargain case and appellant has
the right of appeal. However, the record does not include an order on the motion to
withdraw or a finding on appellant’s request for a free record. In addition, the record
indicates that appellant was originally deemed indigent and appointed counsel in the
underlying case, and that John McDermott later was substituted as counsel. The record
does not reflect whether John McDermott was appointed or retained, and there is no
finding regarding appellant’s entitlement to appellate counsel. It appears that appellant
indicated to the trial court that he intended to retain appellate counsel, but no counsel for
appellant has made an appearance in these appeals.

       If a defendant in a criminal case is indigent, he is entitled to court-appointed counsel
for both the trial of the cause and an appeal to a court of appeals. See TEX. CRIM. PROC.
ANN. art. 1.051(a), (c), (d)(1) (West Supp. 2011). The trial court is responsible for
making the indigency determination and, if the defendant is indigent, appointing and
removing counsel. See TEX. CRIM. PROC. ANN. art. 1.051(d), 26.04 (West Supp. 2011);
TEX. R. APP. P. 20.2. Once counsel is appointed, representation does not end “until
charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is
permitted or ordered by the court to withdraw as counsel for the defendant after a finding of
good cause is entered on the record.” TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2).

       We, therefore, abate this appeal and remand the cause to the trial court for further
proceedings. On remand, the trial court shall conduct a hearing at which a representative
of the Harris County District Attorney’s Office and appellant’s trial counsel John
McDermott shall be present. 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

      We direct the trial court to make appropriate written findings of fact and
conclusions of law and to execute any necessary orders on these issues:

          1) Whether appellant still wishes to pursue these appeals; and, if so,
          2) Determine whether appellant is indigent; and if so, order the court reporter to
             file the reporter’s record with this Court at no cost to appellant; and
          3) Determine whether trial counsel’s motions to withdraw should be granted;
             and, if so,
                 a. If appellant is now indigent and entitled to appointed counsel, appoint
                     counsel on appeal; or,
                 b. If appellant is not indigent:
                          i. Determine whether he has retained an attorney to file a brief,
                             and, if so, obtain the name, address, and telephone number of
                             retained counsel;
                         ii. if appellant has not retained counsel, but intends to retain
                             counsel, the trial court shall provide a deadline by which
                             appellant must hire an attorney; or,
                        iii. if appellant has not retained counsel and does not intend to
                             retain counsel, the trial court shall admonish appellant of the
                             dangers and disadvantages of self-representation, and
                             thereafter,
                                 1. determine whether appellant is knowingly and
                                     intelligently waiving his right to counsel; or,
                                 2. if appellant does not wish to proceed pro se, provide a
                                     deadline by which appellant must hire an attorney.

See TEX. CODE CRIM. PROC. ANN. art. 1.051.

       The trial court shall have a court reporter, or court recorder, record the hearing. A
supplemental clerk’s record containing the findings of the trial court with respect to
appellant’s entitlement to a free record and counsel on appeal shall be sent to this Court no
later than 30 days from the date of this order. See TEX. R. APP. P. 34.5(c). A


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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reporter’s record of the abatement hearing shall also be sent to this court Court 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 without further order
of the Court when the records 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/ Justice Evelyn V. Keyes
                Acting individually       Q Acting for the Court

Date: July 3, 2012




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