                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                  ORDER OF ABATEMENT

Appellate case name:        David Anthony Wagner v. The State of Texas

Appellate case number:      01-17-00752-CR

Trial court case number:    B-16-0323-SA

Trial court:                119th District Court of Tom Green County

        On August 17, 2017, appellant, David Anthony Wagner, was convicted after the
trial court revoked his community supervision, adjudicated him guilty of the third-degree
felony offense of possession of a controlled substance, namely, methamphetamine. See
TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2017). The trial court assessed
appellant’s punishment at seven years’ confinement and ordered him to pay a $2,500.00
fine and $180.00 in restitution. See TEX. PENAL CODE ANN. § 12.34 (West 2017). Also
on August 17, 2017, the trial court certified that this was not a plea-bargain case, and that
appellant had the right to appeal. See TEX. R. APP. P. 25.2(a)(2).

       On September 6, 2017, appellant’s trial counsel timely filed a notice of appeal,
motion for new trial, and motion to withdraw. See TEX. R. APP. P. 26.2(a)(1). On
September 8, 2017, the trial court granted appellant’s trial counsel’s motion to withdraw,
found appellant indigent for purposes of appeal, and appointed Connie J. Kelley as his
appellate attorney. On September 28, 2017, the Texas Supreme Court transferred this
appeal from the Third Court of Appeals to this Court pursuant to its docket equalization
powers. See TEX. GOV’T CODE ANN. § 73.001 (West 2017).

       The complete record was filed in the above-referenced appeal on December 15,
2017, with the filing of the clerk’s record, and appellant’s brief was due by January 16,
2018. See TEX. R. APP. P. 4.1(a), 38.6(a). Because appellant did not timely file a brief,
the Clerk of this Court’s January 25, 2018 late-brief notice notified appellant’s appointed
counsel, Connie J. Kelley, that this case may be abated for a hearing pursuant to Rule of
Appellate Procedure 38.8(b)(2), if either the brief or an extension motion were not filed
within ten days of that notice. Appellant’s counsel failed to timely respond.
       Accordingly, we sua sponte abate this appeal and remand for the trial court to
immediately conduct a hearing at which a representative of the Tom Green County
District Attorney’s Office and appellant’s counsel, Connie J. Kelley, 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 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
           Connie J. Kelley has abandoned this appeal;
       (3) if counsel Connie J. Kelley has not abandoned this appeal:
              a.     inquire of counsel the reasons, if any, that she has failed to file a
                     brief timely 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 Connie J. Kelley has abandoned this appeal, enter a written order relieving
           Connie J. Kelley of her 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 brief
                         is 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

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.

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       (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 2017); 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 10 days of the date
of the hearing. The court reporter is directed to file the reporter’s record of the hearing
within 10 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 10 days of the date of this hearing.

       If Connie J. Kelley files an extension motion and brief on appellant’s behalf in this
Court and a copy of such brief in the trial court, and her 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, this Court
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/ Laura C. Higley
                    

Date: February 8, 2018




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