                                   COURT OF APPEALS FOR THE
                              FIRST DISTRICT OF TEXAS AT HOUSTON

                                   CONTINUING ABATEMENT ORDER

Appellate case name:        Robert Thomas Wilharm v. The State of Texas

Appellate case number:      01-15-00507-CR

Trial court case number: 1402605

Trial court:                174th District Court of Harris County

         On December 1, 2015, this Court issued an order, abating the appeal and remanding to
the trial court for a hearing regarding appellant’s failure to file a brief. We ordered the trial court
to make findings and conclusions and to file a supplemental clerk’s record and the hearing record
on or before December 22, 2015. No records have been filed. Accordingly, we enter the
following order.
        Appellant’s appointed counsel, Joe David Wells, has not filed a brief on appellant’s
behalf in the above-referenced appeal. Appellant’s brief was originally due on August 6, 2015.
On August 28, 2015, the Court granted appellant’s first motion for extension of time to file a
brief, ordering that appellant’s brief be filed by September 28, 2015. On October 15, 2015, the
Clerk of the Court notified appellant that a brief had not yet been filed and required a response
within 10 days. See TEX. R. APP. P. 38.8(b)(2). No response was received.
        Pursuant to Rule of Appellate Procedure 38.8 and our previous order, this appeal
continues to abated and remanded to the trial court for a hearing. See TEX. R. APP. P. 38.8(b)(2)–
(3). We direct the trial court to conduct a hearing at which a representative of the Harris County
District Attorney’s Office, Counsel Martin, and appellant shall be present.1 The trial court shall
have a court reporter record the hearing. The trial court is directed to make appropriate findings
on these issues:
       (1)     whether appellant wishes to prosecute the appeal; and, if so,


1      If appellant is incarcerated, at the trial court’s discretion, appellant may participate in the hearing
       by closed-circuit video teleconferencing. 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.
       (2)   whether Counsel Wells has abandoned the appeal by failing to timely file a brief on
             appellant’s behalf;
       (3)   and, if so, whether appellant is presently
             (a) indigent, in which case the trial court should appoint new appellate counsel at no
                  expense to appellant and establish a date by which counsel will file a brief, no
                  later than 30 days from the appointment; or
             (b) not indigent, in which case the trial court should establish a date by which
                 appellant shall retain new counsel;
       (4)   or, if Counsel Wells has not abandoned the appeal, make appropriate findings and
             recommendations regarding the reason that Counsel has failed to file a brief and
             establish a date by which Counsel will file appellant’s brief, no later than 30 days
             from the date of the hearing.
TEX. CODE CRIM. PROC. ANN. arts. 1.051(d), 26.04; TEX. R. APP. P. 38.8(b)(2), (3), (4).
        The trial court shall cause a supplemental clerk’s record containing its findings and
recommendations, including the name, address, telephone number, and State Bar number of any
substitute counsel, and the reporter’s record of the hearing to be filed in this Court no later than
February 17, 2016. If the hearing is conducted by video teleconference, a certified video
recording of the hearing shall be filed in this Court no later than February 8, 2016.

        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 a supplemental clerk’s
record that complies with this order, and the reporter’s record of the hearing, have been filed in
this Court. The trial court coordinator 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/ Harvey Brown
                    Acting individually       Acting for the Court


Date: February 2, 2016
