                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                   ORDER OF ABATEMENT

Appellate case name:         Lonnie Gene Kinnett v. The State of Texas

Appellate case number:       01-18-01128-CR

Trial court case number:     17-CR-0916

Trial court:                 212th District Court of Galveston County

        On December 21, 2018, appellant, Lonnie Gene Kinnett, filed a notice of appeal
from the September 26, 2018 judgment of conviction following a jury trial of the enhanced
first-degree felony offense of driving while intoxicated third or more, for which the jury
assessed appellant’s punishment at life confinement. The trial court certified that this was
not a plea-bargain case, and that appellant had the right to appeal. See TEX. R. APP. P.
25.2(a)(2). The Clerk of this Court’s June 4, 2019 notice granted the third extension request
to file appellant’s brief until June 28, 2019, by appellant’s retained counsel, Susan C.
Norman and Holly Gail Crampton, with no further extensions to be granted.

       Because appellant did not timely file a brief, the Clerk of this Court sent a late-brief
notice on July 1, 2019, notifying appellant’s counsel, Susan C. Norman and Holly Gail
Crampton, 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. To date, counsel has neither timely filed a brief nor requested another
extension 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 Galveston County
District Attorney’s Office and appellant’s retained counsel, Susan C. Norman and Holly
Gail Crampton, 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

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       Any such teleconference must use a closed-circuit video teleconferencing system that
       provides for a simultaneous compressed full motion video and interactive communication
       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
           Susan C. Norman and Holly Gail Crampton have abandoned this appeal;
       (3) if counsel Susan C. Norman and Holly Gail Crampton have not abandoned this
           appeal:
              a.     inquire of counsel the reasons, if any, that they have 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 Susan C. Norman and Holly Gail Crampton have abandoned this appeal, enter
           a written order relieving Susan C. Norman and Holly Gail Crampton of their
           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.

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.

       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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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 Susan C. Norman or Holly Gail Crampton 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: ___July 23, 2019___




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