                                  COURT OF APPEALS FOR THE
                             FIRST DISTRICT OF TEXAS AT HOUSTON

                                              ORDER

Appellate case name:       Scott Fancher v. The State of Texas

Appellate case number:     01-12-00064-CR

Trial court case number: 1745796

Trial court:               County Criminal Court at Law No. 6 of Harris County

       The complete record has been filed in the above-referenced appeal. Appellant’s appointed
counsel, Michael Antalan, has not filed a brief on appellant’s behalf. On August 16, 2012, 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). Appellant did not respond.

       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, Michael Antalan, 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

       The trial court is directed to:

       (1) determine whether appellant wishes to prosecute the appeal;
       (2) if appellant does wish to prosecute the appeal, determine whether counsel’s motion
           to withdraw, filed in the trial court as part of the notice of appeal on January 11,
           2012, should be granted2 or whether good cause exists to relieve Michael Antalan of


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.

2      Although counsel included a motion to withdraw in the notice of appeal, no order
       granting the motion appears in the record. Consequently, counsel continues to represent
             his duties as appellant’s counsel;
       (3)   if the motion should be granted or good cause exists, enter a written order granting
             the motion or relieving Michael Antalan of his duties as appellant’s counsel,
             including in the order the basis for and finding of good cause, and appoint substitute
             appellate counsel at no expense to appellant;
       (4)   if the motion should not be granted and good cause does not exist, 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;
       (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), (c), (d)(1), 26.04(j)(2), (p) (West Supp. 2012);
TEX. R. APP. P. 38.8(b); 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).

        The trial court shall have a court reporter record the hearing and file the reporter’s record
with this Court within 25 days of the date of this order. 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 25 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
25 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 of the hearing 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/ Terry Jennings
                    Acting individually       Acting for the Court


Date: February 8, 2013




       appellant in this appeal. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (West Supp.
       2012) (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”).
