                                COURT OF APPEALS FOR THE
                           FIRST DISTRICT OF TEXAS AT HOUSTON


                                 ORDER OF ABATEMENT

Appellate case name:     Korey Adeleye v. The State of Texas

Appellate case numbers: 01-10-00879-CR, 01-10-00880-CR, 01-10-00881-CR, and
                      01-10-00882-CR

Trial court case numbers: 1212111 and 1212112

Trial court:             337th District Court of Harris County, Texas


       A motion to substitute counsel was filed by attorney Vivian King in appellate cause
numbers 01-10-00879-CR and 01-10-00880-CR. These appellate cause numbers are
assigned to the appeals of the trial court’s denial of Appellant’s application for writ of
habeas corpus filed ~n each of the two trial court cases. The motion stated that King has
been retained as appellant’s counsel on appeal and seeks to substitute King for appellant’s
court-appointed counsel Frances Northcutt. The motion to substitute was granted on June
17, 2011

       King also filed a motion to substitute in appellate cause numbers 01-10-00881-CR
and 01-10-00882-CR. These appellate cause numbers have been assigned to the appeals
from the trial court’s judgment of conviction in each case. That motion also stated that
King is retained counsel on appeal and seeks to substitute for appellant’s court-appointed
counsel Frances Northcutt. That motion to substitute was granted on June 28, 2011.

      King filed a brief on behalf of Appellant on July 28, 2011 ~n appellate cause
numbers 01-10-00879-CR and 01-10-00880-CR, which are assigned to Appellant’s
appeals from the denial of habeas relief.

       When asked by this Court’s clerk’s office whether she would be filing a brief in the
other two appellate cause numbers (i.e., 01:10-00881-CR and 01-10-00882-CR, which are
assigned to the appeals from the judgments of conviction), King requested that those cause
numbers also be placed on the brief. However, a rewew of the brief revealed that it
contained no substantive discussion or arguments with respect to the trial court’s denial of
habeas relief. The brief also did not contain proper citations to the reporter’s record in
support of the first issue identified in the brief. As a result, Appellant’s brief was struck
by order dated June 25, 2012.
        When contacted by this Court’s clerk’s office, King stated that she had been
retained to represent Appellant only in the appeals from the two judgments of conviction
(i.e., appellate cause numbers 01-10-00881-CR and 01-10-00882-CR). In a separate
telephone conversation, court-appointed attorney Frances Northcutt also stated that she
had been appointed only to represent Appellant in his appeals from the judgments of
conviction, not in the appeals from the denial of the habeas applications. The record ~s not
clear whether Northcutt was appointed to represent Appellant only in the appeals from the
judgments of conviction or whether she was also appointed to represent him in the appeals
from the denial of the habeas applications.

        In short, the status of Appellant’s representation by counsel on appeal needs
clarification. For this reason, we withdraw and vacate both (1) the order dated June 17,
2011 granting King’s motion to substitute counsel in appellate cause numbers
01-10-00879-CR and 01-10-00880-CR and (2) the order dated June 28, 2011 granting
King’s motion to substitute counsel in appellate cause numbers 01-10-00881-CR and
01-10-00882-CR.1

        Accordingly, abate each of the four above-referenced appeals and remand for
the trial court to immediately conduct a hearing, with respect to each of the four appeals,
at which appellant,2 his counsel, Frances Northcutt, and a representative of the Harris

        We also note that pursuant to Code of Criminal Procedure article 26.04, a court-appointed
attorney shall "represent the defendant until charges are dismissed, the defendant is acquitted,
appeals are exhaus!ed, or the attorne.y is relieved of his duties by the court or replaced by other
counsel after a finding of good cause is entered on the record." TEX. CODE CRIM. PROC.art.          ANN.
26.040)(2). When an appellant files a motion requesting that the original court appointed
attorney be allowed to withdraw and that another attorney be substituted to pursue the appeal, the
Court of Criminal Appeals has explained that "it is fitting that a case should be abated to the trial
court for substitution of counsel," "[e]specially given the elaborate mechanism for making court
appointments for indigent criminal defendants that is now in place under Article 26.04." Meza v.
State, 206 S.W.3d 684, 688 (Tex. Crim. App. 2006) (citing with approval Enriquez v. State, 999
S.W.2d 906, 908 (Tex. App.--Waco 1999, order)). Thus, here, the appeals are appropriately
abated to permit the trial court to rule on appellant’s motions to withdraw court appointed counsel
and to substitute counsel. See Hernandez-Sandoval v. State, No. 07-11-00085-CR, 2011 WL
4478364, at * 1-2 (Tex. App.--Amarillo Aug. 31. 2011, order).

        Appellant shall be present for the hearing in person or, if appellant is incarcerated and at the
trial court’s discretion, appellant may participate an the hearing by closed-circuit video
teleconferencing. 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, appellant and his counsel shall be able to
communicate privately without being recorded or heard by the trial court or the attorney
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County District Attorney’s Office shall be present. It would also be beneficial for
attorney Vivian King to be present at the hearing. The trial court shall have a court
reporter record the hearing.
      With respect to each of the four appeals, the trial court 1s directed to make
appropriate findings and recommendations on these ssues:
       (1) whether appellant desires to pursue his appeal; and, if so,
       (2) whether counsel, Frances Northcutt, should be allowed to withdraw;
           and, if so,
       (3) whether appellant has retained new counsel to file a brief and, if so, the
           name, address, telephone number, and State Bar number of retained
            counsel, see TEX. R. APt,. P. 38.8(b)(4), or
       (4) whether appellant is presently indigent, in which case the trial court
            should appoint appellate counsel at no expense to appellant, see TEX.
            CODE CRIM. PROC. ANN. art. 26.04.

      If the trial court finds that appellant does not wish to pursue the appeal, we shall
dismiss the appeal.3 See TEX. R. APp. P. 38.8(b)(4).

        The trial court’s findings and recommendations shall be sent to this Court no
later than August 13, 2012. If the hearing is conducted by video teleconference, the trial
court’s findings and recommendations and a certified video recording of the hearing shall
be filed ~n this Court no later than August 13, 2012.

        Each of the above-referenced appeals ~s abated, treated as a closed case, and
removed from this Court’s active docket. Each appeal will be reinstated on this Court’s
active docket when the trial court’s findings and recommendations, and the reporter’s
record, if any, are filed in this Court. At that time, a new appellate briefing schedule will
be set.




representing the State.
3 Attorneys Frances Northcutt and Vivian King have each questioned, in corresponding with
this Court’s clerk’s office, the propriety of the filing of the applications for writ of habeas corpus
by former counsel. It would be beneficial for the trial court to discuss this issue with counsel at
the hearing and to determine whether appellant intends to pursue the appeals of the denial of the
habeas applications in appellate cause numbers 01-10-00879-CR and 01-10-00880-CR.
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       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 ~s so ORDERED.


Justice’s signature:/s/Laura C. Higle¥
                   Acting individually


Date: July 13, 2012




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