                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                   ORDER OF ABATEMENT

Appellate case name:         Timothy Dynell George v. The State of Texas

Appellate case number:       01-15-00128-CR

Trial court case number:     1431234

Trial court:                 185th District Court of Harris County

       On August 11, 2015, this case was reinstated after a compliant supplemental
clerk’s record was filed in this Court, and appellant’s brief was ordered to be filed within
30 days of that order. Because appellant did not timely file a brief by September 10,
2015, the Clerk of this Court sent a late brief notice on September 21, 2015, notifying
appellant’s retained counsel, Robert T. Wallace, that this case would be abated for a
hearing pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), if either his brief or
extension motion were not filed within 10 days of that notice. Nevertheless, appellant’s
counsel, Robert T. Wallace, has not timely filed a brief or extension request on
appellant’s behalf.

       We therefore sua sponte abate this 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, Robert T. Wallace, 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



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.
       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
           Robert T. Wallace has abandoned this appeal;
       (3) if counsel Robert T. Wallace has not abandoned this 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 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 Robert T. Wallace has abandoned this appeal, enter a written order relieving
           Robert T. Wallace 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 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 these
                         appeals 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 Supp. 2014); 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. 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 court 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 30 days of the date of
the hearing. The court reporter is directed to file the reporter’s record of the hearing
within 30 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 30 days of the date of this hearing.

       If Robert T. Wallace files an extension motion and 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,
together with a motion requesting that we withdraw this Order of Abatement, we 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/ Laura Carter Higley
                     Acting individually      Acting for the Court

Date: October 27, 2015
