                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                  ORDER OF ABATEMENT

Appellate case name:        David Scott Lindsey v. The State of Texas

Appellate case number:      01-13-01008-CR

Trial court case number:    1281488

Trial court:                209th District Court of Harris County

        The complete record was filed in the above-referenced appeal on March 13, 2014.
Appellant’s brief was therefore due on April 14, 2014. See TEX. R. APP. P. 38.6(a). On
May 8, 2014, appellant requested and was granted an extension of time to file his brief,
making the deadline for filing his brief June 4, 2014. On June 25, 2014, the Clerk of this
Court notified appellant that the time for filing his brief had expired and that this case
would be abated for a hearing pursuant to Texas Rule of Appellate Procedure 38.8(b) if a
brief was not filed by July 7, 2014. See TEX. R. APP. P. 38.8(b)(2), (3). Nevertheless,
appellant’s retained counsel, Jon P. Thomas, did not respond to our notice and has not
filed a brief on appellant’s behalf.

       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, Jon P. Thomas, shall be present. See 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.* The trial court shall have a court reporter record
the hearing.


*      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 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 Jon
          P. Thomas has abandoned the appeal;
      (3) if counsel Jon P. Thomas 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; and
             b.     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 Jon. P. Thomas has abandoned this appeal, enter a written order relieving
          Jon P. Thomas 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); 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); id. 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/ Michael Massengale
                     Acting individually

Date: October 9, 2014
