                                COURT OF APPEALS FOR THE
                           FIRST DISTRICT OF TEXAS AT HOUSTON

                                 ORDER OF ABATEMENT

Appellate case name:        Ex Parte Nii-Otabil Nelson

Appellate case number:      01-14-00924-CR

Trial court case number:    1372073A

Trial court:                182nd Judicial District Court of Harris County

       Appellant, Nii-Otabil Nelson, has perfected his appeal from the trial court’s
September 22, 2014 order denying his application for a writ of habeas corpus, under
Texas Code of Criminal Procedure Article 11.072. Appellant, through counsel, alleges
that his trial counsel provided ineffective assistance which led to his pleading guilty to a
misdemeanor and receiving community supervision for eighteen months. We abate the
appeal and remand the cause to the trial court for further proceedings.

        First, the Clerk of the Court has examined the clerk’s record and found that it does
not comport with the Texas Rules of Appellate Procedure in that it does not include the
trial court’s certification of appellant’s right of appeal. See TEX. R. APP. P. 25.2(d),
34.5(a)(12), 37.1; TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (West Supp. 2014); see
also Ex parte Tarango, 116 S.W.3d 201, 203 (Tex. App.—El Paso 2003, no pet.). This
order constitutes notice to all parties of the defective certification. See TEX. R. APP. P.
37.1.

        Second, the trial court held a writ hearing by affidavit on August 28, 2014, on
appellant’s habeas application. On September 22, 2014, the trial court signed findings of
fact or conclusions of law including an order denying habeas relief. Although the
findings stated that the trial court reviewed the evidence and testimony at the hearing, and
referred to a motion for discovery filed by appellant’s trial counsel, Anthony T.
Simmons, no affidavit by appellant or his trial counsel, or other evidentiary documents
that may have been considered by the trial court, were included in the clerk’s record filed
in this Court on November 18, 2014. On December 2, 2014, the court reporter confirmed
that no record was taken and did not submit any exhibits that may have been submitted.
        Although “there is nothing irregular about the use of affidavits to accompany an
application for writ of habeas corpus under article 11.072,” Ex Parte Zantos-Cuebas, 429
S.W.3d 83, 91 (Tex. App.—Houston [1st Dist.] 2014, no pet.), remand is necessary here
because the clerk’s record did not include any affidavits that may have been attached to
the application or any other documents that the trial court may have used in its
determination. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 6(b) (stating that, “[i]n
making its determination, the [habeas] court may order affidavits, depositions,
interrogatories, or a hearing, and may rely on the court’s personal recollection.”); see also
TEX. R. APP. P. 44.4(b) (stating that if the trial court can correct its action or failure to
act, the court of appeals must direct the trial court to correct the error).

       Accordingly, we 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, Lott J. Brooks, III, 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 closed-circuit video
teleconferencing.1

       We direct the trial court to:
          1) execute a certification of appellant’s right to appeal, indicating whether
             appellant has the right to appeal the denial of his application;
          2) determine whether any documents from this cause have been omitted from
             the clerk’s record filed with this Court on November 18, 2014;
          3) determine, if documents from this cause were omitted from the clerk’s
             record on file with this Court, whether the documents were filed with the
             trial clerk in this cause, and if so, order the trial clerk to prepare, certify and
             file a supplemental clerk’s record containing the missing documents of the
             proceedings;
          4) determine, if any documents were not filed with the trial clerk in this cause
             or were omitted from the clerk’s record on file with this Court and cannot
             be filed with the trial clerk and prepared, certified, and filed with the
             supplemental clerk’s record:
                  a. Whether the lost or destroyed portion of the clerk’s record is
                     necessary to the appeal’s resolution; and

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       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 appellant’s request, 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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                  b. Whether the lost or destroyed portion of the clerk’s record can be
                     replaced by agreement of the parties;
           5) determine if there are any other documents from the proceedings below,
              including from the underlying Cause No. 1372073, that may have been
              considered by the trial court or are considered relevant by the trial court for
              this appeal, have been omitted from the clerk’s record, but can be prepared,
              certified, and filed with the trial clerk, and order the trial clerk to file those
              documents with the supplemental clerk’s record;
           6) make any other findings and recommendations the trial court deems
              appropriate; and
           7) enter written findings of fact, conclusions of law, and recommendations as
              to these issues, separate and apart from any docket sheet notations.
See TEX. GOV’T CODE ANN. § 52.046 (West 2013); TEX. R. APP. P. 13.1(a), 25.2(a)(2),
(d), (f), 34.5(a)(12), (c)(2), 34.6(a)(1), (d), (e)(2), (3), (f), 35.3(b), (c), 37.1, 44.4(b). The
trial court coordinator shall set a hearing date no later than 30 days from the date of this
order and notify the parties. The trial court shall have a court reporter record the hearing
and file a reporter’s record with this Court 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.


       Accordingly, the trial court clerk is directed to file a supplemental clerk’s record
containing: (1) the certification of appellant’s right of appeal the denial of his habeas
application; including any findings of fact or conclusions of law made by the trial court;
and (2) any missing affidavits or other documents the trial court may have considered in
making its determination or deems relevant for appeal, including any findings of fact or
conclusions of law made by the trial court. The supplemental clerk’s record shall be filed
with this Court no later than 30 days from the date of the hearing. See TEX. R. APP. P.
34.5(c)(2).

       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 reporter’s record are filed with the Clerk of this Court.

       It is so ORDERED.

Judge’s signature: /s/ Laura C. Higley
                    Acting individually         Acting for the Court

Date: December 18, 2014


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