                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                   ORDER OF ABATEMENT

Appellate case name:         Corbik Reece v. The State of Texas

Appellate case numbers:      01-14-00484-CR, 01-14-00485-CR

Trial court case numbers: 1338724, 1338725

Trial court:                 174th Judicial District Court of Harris County

        On June 17, 2013, the trial court certified that appellant had the right to appeal in
both of the above related trial court cases. On May 1, 2014, appellant was convicted after
pleading guilty to two counts of aggravated robbery with a deadly weapon for which he
received two concurrent prison sentences of twenty years. However, in the judgments of
conviction in both causes, the trial court also made special findings of “APPEAL
WAIVED. NO PERMISSION TO APPEAL GRANTED.” Thus, the judgments appear
to be inconsistent with the certifications. This order constitutes notice to all parties of the
apparent defective certifications of the right of appeal. See TEX. R. APP. P. 37.1.

        Furthermore, an eligible indigent appellant has a right to appointed counsel on
direct appeal from a criminal conviction. See Buntion v. Harmon, 827 S.W.2d 945, 948-
49 (Tex. Crim. App. 1992); see also TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1) (West
Supp. 2013). Although the trial court had found appellant indigent and appointed
counsel, Randolph Earl Roll, on October 9, 2013, the clerk’s record contains no post-
judgment indication that Mr. Roll moved to withdraw or was permitted to withdraw. See
TEX. R. APP. P. 6.3(b)(3). Nevertheless, appellant’s May 30, 2014 notices of appeal were
filed pro se, with “TO BE DETERMINED” listed as appellate attorney of record by the
trial clerk and, thus, no attorney has appeared in this Court on appellant’s behalf. On
September 2, 2014, appellant filed a pro se letter-motion for an extension of time to file
his appellate brief. On September 29, 2014, appellant filed another pro se letter seeking a
response to his extension motion and requesting the appointment of counsel because he is
indigent.
       Pursuant to the Code of Criminal Procedure, Randolph Earl Roll continues to
represent appellant because he has not been discharged by the trial court via written order
included in the clerk’s records, and the appeals have not been exhausted. See TEX. CODE
CRIM. PROC. ANN. art. 26.04(j)(2) (West Supp. 2013) (requiring appointed attorney to
“represent the defendant 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”). In addition,
even if Randolph Earl Roll were permitted to withdraw, appellant is entitled to a new
court-appointed counsel, unless his counsel, or the attorney representing the State, moved
for reconsideration of the trial court’s determination that he is indigent and the trial court
found that a material change in his financial circumstances occurred. See TEX. CODE
CRIM. PROC. ANN. art. 26.04(p); see also TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1);
Ward v. State, 740 S.W.2d 794, 798 (Tex. Crim. App. 1987); Lopez v. State, 486 S.W.2d
559, 560 (Tex. Crim. App. 1972); Fowler v. State, 874 S.W.2d 112, 114 (Tex. App.—
Austin 1994, order, pet. ref’d).


        We therefore abate these appeals and remand the causes to the trial court for
further proceedings. On remand, the trial court shall immediately conduct a hearing at
which a representative of the Harris County District Attorney’s Office and appellant’s
trial counsel, Randolph Earl Roll, 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 use of a closed-circuit video teleconferencing system.1


       We direct the trial court to:
          1) Execute an amended certification of appellant’s right to appeal indicating
             whether or not appellant has the right of appeal in both trial cause numbers;
          2) Determine whether appellant still wishes to pursue these appeals;
          3) If appellant wishes to pursue these appeals, determine whether appellant’s
             counsel, Randolph Earl Roll, intends to represent appellant on these appeals
             or whether counsel should be permitted to withdraw;
          4) If counsel is permitted to withdraw, enter a written order granting his
             request to withdraw and determine whether appellant is currently indigent
             or whether there has been a material change in his financial circumstances
             since the trial court’s October 9, 2013 order finding him to be indigent such

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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               that he is no longer indigent;
          5)   If appellant is either currently indigent or there has not been a material
               change in his financial circumstances, appoint substitute appellate counsel
               at no expense to appellant;
          6)   If appellant is not currently indigent and there has been a material change in
               his financial circumstances:
                   a. Enter written findings of fact establishing the material change in
                       appellant’s financial circumstances;
                   b. Admonish appellant regarding the dangers and disadvantages of self-
                       representation, and
                           i. If appellant wishes to knowingly and intelligently waive his
                              right to counsel, obtain a written waiver of the right to
                              counsel; or,
                          ii. if appellant does not wish to proceed pro se, provide a
                              deadline by which appellant must hire an attorney, which
                              shall be no later than 30 days from the date of the hearing;
          7)   Make any other findings and recommendations the trial court deems
               appropriate; and
          8)   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), (c), (d)(1), (f); 26.04(j)(2), (p); TEX. R.
APP. P. 25.2(a)(2), (d); Ward, 740 S.W.2d at 798; Lopez, 486 S.W.2d at 560; Fowler, 874
S.W.2d at 114.
       The trial court shall have a court reporter, or court recorder, record the hearing.
The trial court clerk is directed to file a supplemental clerk’s record containing the trial
court’s findings, recommendations, and orders 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 recording of the hearing shall also be filed in this Court within
30 days of the date of this order.


       These appeals are abated, treated as closed cases, and removed from this Court’s
active docket. These appeals will be reinstated on this Court’s active docket when
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/ Evelyn V. Keyes
                    Acting individually
Date: October 9, 2014




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