                                    COURT OF APPEALS FOR THE
                               FIRST DISTRICT OF TEXAS AT HOUSTON

                                     ORDER OF ABATEMENT
Appellate case:        01-11-01114-CR; John James Smith v. The State of Texas
Trial court case:      1234109, in the 184th District Court of Harris County, Texas

        The complete record has been filed in the above-referenced appeal. Appellant’s appointed
counsel, Tony Aninao, has not filed a brief on appellant’s behalf. Appellant’s brief was due on
April 23, 2012. On May 16, 2012 the Clerk of the Court notified appellant that a brief had not yet
been filed and required a response within 10 days. Appellant did not respond.

       Before a court-appointed attorney may be relieved of his duties and replaced by other
counsel, a finding of good cause must be entered on the record. TEX. CODE CRIM. PROC. ANN. art.
26.04(j)(2) (West Supp. 2011). We therefore abate this appeal and remove it from this Court’s
active docket. We direct the trial court to conduct a hearing at which a representative of the
Harris County District Attorney’s Office and appellant’s counsel Tony Aninao 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

      The trial court shall have a court reporter record the hearing. The trial court is directed to
make appropriate findings on these issues:

       (1) make a finding on whether appellant wishes to prosecute the appeal;
       (2) inquire of counsel Tony Aninao the reasons, if any, that he has failed to file a brief on
           appellant’s behalf;
       (3) if appellant does wish to prosecute the appeal, determine whether good cause exists to
           relieve Tony Aninao of his duties as appellant’s counsel;
       (4) if good cause exists, enter a written order relieving Tony Aninao of his duties as
           appellant’s counsel, including in the order the basis for and finding of good cause, and
           appointing substitute appellate counsel at no expense to appellant;
       (5) if good cause does not exist, set a date certain when appellant’s brief is due, regardless
           of whether this Court has yet reinstated the appeal and no later than 30 days from the
           date of the hearing; and
       (6) make any other findings and recommendations the trial court deems appropriate.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(d), 26.04(j)(2) (West Supp. 2011); TEX. R. APP. P.
38.8(b).
       The trial court’s findings and recommendations shall be sent to this Court no later

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.
than 30 days from the date of this order. 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 in this Court no later than 30 days from the date of this order.

       If the trial court finds that appellant does not wish to pursue the appeal, we shall dismiss the
appeal. Otherwise, a supplemental clerk’s record including the name, address, telephone number,
and State Bar number of substitute counsel is due in this Court no later than 30 days from the
date of this order.

      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 trial court’s findings and
recommendations are filed in this Court. The court coordinator of the trial court shall set a
hearing date and notify the parties of and the Clerk of this Court of such date.

       It is so ORDERED.

Judge’s signature: /s/ Evelyn Keyes
                Q Acting individually         Q Acting for the Court
Date: July 11, 2012




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