                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                 ORDER OF ABATEMENT

Appellate case name:        Jody Wayne Whelchel v. The State of Texas

Appellate case number:      01-14-00597-CR

Trial court case number:    12-DCR-059468

Trial court:                400th Judicial District Court of Fort Bend County

        The complete record was filed in the above-referenced appeal on December 10,
2014, with the filing of the last volume of the reporter’s record. Appellant’s brief was set
to be due within 30 days of the filing of the reporter’s record, or by December 31, 2014.
Because appellant did not timely file a brief by December 31, 2014, the Clerk of this
Court sent a late brief notice on January 12, 2015, notifying appellant’s counsel 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 appointed counsel, Baltazar Salazar, has not timely
filed a brief or extension request on appellant’s behalf.

       We therefore 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, Baltazar Salazar, 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 appeals
       (2) if appellant does wish to prosecute this appeal, determine whether counsel
           Baltazar Salazar has abandoned this appeal;
       (3) if counsel Baltazar Salazar 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 Baltazar Salazar has abandoned this appeal, enter a written order relieving
           Baltazar Salazar 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 still 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 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); 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, a certified video recording of the hearing shall also be filed in this Court
within 30 days of the date of this hearing.

        If Baltazar Salazar files an extension motion and brief on appellant’s behalf in this
Court and a copy of such brief in the trial court, and the brief complies with Texas Rule
of Appellate Procedure 38.1, no later than February 17, 2015, 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 reporter’s record are filed in this Court.

       It is so ORDERED.

Judge’s signature: /s/ Evelyn V. Keyes
                     Acting individually      Acting for the Court

Date: February 3, 2015
