                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                  ORDER OF ABATEMENT

Appellate case name:        Aaron Charles Burton v. The State of Texas

Appellate case number:      01-14-00513-CR, 01-14-00514-CR

Trial court case number:    1330898, 1330899

Trial court:                351st District Court of Harris County

       The complete record was filed in the above-referenced appeals on September 6,
2014, with the filing of the reporter’s records. Appellant’s briefs were set to be due
within 30 days of the filing of the reporter’s record, or by October 6, 2014. Because
appellant did not timely file a brief by October 6, 2014, the Clerk of this Court sent late
brief notices on October 14 and 15, 2014, notifying appellant’s counsel that these cases
would be abated for a hearing pursuant to Texas Rule of Appellate Procedure 38.8(b)(2),
if his briefs and extension motions were not filed within 10 days of those notices.
Nevertheless, appellant’s appointed counsel, Tony Aninao, has not timely filed briefs or
extension requests on appellant’s behalf.

       We therefore abate these appeals 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, Tony Aninao, 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 these appeals;
       (2) if appellant does wish to prosecute these appeals, determine whether counsel
           Tony Aninao has abandoned these appeals;
       (3) if counsel Tony Aninao has not abandoned these appeals:
              a.     inquire of counsel the reasons, if any, that he has failed to file briefs
                     on appellant’s behalf; and
              b.     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;
       (4) if Tony Aninao has abandoned these appeals, enter a written order relieving
           Tony Aninao 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 trial court clerk is directed to file supplemental clerk’s records containing the
trial court’s findings and recommendations with this Court in each appellate cause
number within 30 days of the date of this order. The court reporter is directed to file the


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reporter’s record of the hearing in each appellate cause number 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.

        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 the
supplemental clerk’s records and the reporter’s records 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/ Laura C. Higley
                     Acting individually      Acting for the Court


Panel consists of ____________________________________________


Date: October 30, 2014




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