                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                 ORDER OF ABATEMENT

Appellate case name:        Janai Atkins v. The State of Texas

Appellate case number:      01-16-00080-CR

Trial court case number:    1983681

Trial court:                County Criminal Court at Law No. 4 of Harris County

       This case involves an appeal from a judgment, signed by the trial court on October
15, 2015, in which the appellant, Janai Atkins, was found guilty of the class B
misdemeanor offense of theft—$50 or more but less than $500—for which the jury
sentenced her to 180 days in county jail and a $250.00 fine, but the trial court suspended
that sentence and placed her on deferred adjudication community supervision for
eighteen months. The trial court certified appellant’s right of appeal because this was not
a plea-bargain case and appellant had a right of appeal, and she filed a pro se notice of
appeal. See TEX. R. APP. P. 25.2(a)(2)(B).

        On March 31, 2016, because there was no written order permitting counsel to
withdraw, this Court ordered counsel, Deborah Stanton Burke, to request and pay for the
reporter’s record within thirty days of that order. On June 2, 2016, because no timely
response had been received from appellant’s counsel, this Court notified appellant’s
counsel that this Court would proceed without the reporter’s record and ordered counsel
to file appellant’s brief within thirty days of that order.

       On June 20, 2016, the Clerk of this Court filed this Court’s June 2, 2016 order that
was mailed to appellant because it was marked as returned to sender by the postal service.
On June 21, 2016, Deborah Stanton Burke filed a notice of non-representation in this
Court stating that she does not intend to represent appellant because appellant cannot
afford to retain her services and, thus, appellant requests the appointment of new
appellate counsel.

       However, if retained trial counsel does not wish to continue to represent an
appellant, counsel must file a motion to withdraw with the trial court and be granted
withdrawal. See Whitehead v. State, 130 S.W.3d 866, 879 (Tex. Crim. App. 2004)
(stating that Texas Rule of Appellate Procedure 6.4(b) “specifically bars appointed
counsel in a criminal case from filing a ‘nonrepresentation’ notice but does not mention
retained counsel,” and thus, “[r]etained counsel must file a motion to withdraw”)
(emphasis in original); Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003).
Because no order signed by the trial court granting counsel’s withdrawal was filed with
the clerk’s record or attached to counsel’s motion, and this appeal has not been
exhausted, Deborah Stanton Burke continues as appellant’s counsel until permitted to
withdraw. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (West Supp. 2015)
(requiring attorney to “represent the defendant until charges are dismissed, the defendant
is acquitted, appeals are exhausted, or the attorney is permitted or ordered by the court to
withdraw as counsel for the defendant after a finding of good cause is entered on the
record”).

       Accordingly, the Court sua sponte construes appellant’s counsel’s notice of non-
representation as a motion to abate and grants it, abates the appeal, and remands the
case to the trial court for further proceedings. The trial court shall immediately conduct a
hearing at which a representative of the Harris County District Attorney’s Office and
appellant’s trial counsel, Deborah Stanton Burke, 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) determine whether appellant wishes to prosecute the appeal;
       (2) if appellant wishes to prosecute the appeal, determine whether appellant is
           indigent;
       (3) if appellant is indigent, determine whether good cause exists to relieve
           Deborah Stanton Burke of her duties as appellant’s counsel;
              a. if good cause exists to remove counsel, enter a written order relieving
                 Deborah Stanton Burke of her duties as appellant’s counsel, and appoint
                 substitute appellate counsel at no expense to appellant;
              b. if good cause does not exist to remove counsel, provide a final deadline
                 by which Deborah Stanton Burke must file an appellant’s brief in this
                 Court, which shall be no more than 30 days from the date of the hearing;
       (4) if appellant is not indigent and Deborah Stanton Burke does not intend to

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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           represent appellant on appeal,
              a.     determine whether appellant has retained an attorney to represent her
                     on appeal, and, if so, obtain the name, address, and telephone
                     number of retained counsel;
              b.     if appellant has not retained counsel, admonish appellant of the
                     dangers and disadvantages of self-representation, and
                      i. determine whether appellant has knowingly and intelligently
                         waived her right to counsel; and
                     ii. determine whether any decision by appellant to proceed pro se is
                         in the best interest of appellant, the State, and the administration
                         of justice;
                    iii. 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), (c), (d)(1), (f), 26.04; TEX. R. APP. P.
38.6(a); Whitehead, 130 S.W.3d at 879; Jones, 98 S.W.3d at 703; Goffney, 843 S.W.2d at
584–85; Hawkins, 613 S.W.2d at 722–23; cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g).

       The trial court shall have a court reporter, or court recorder, record the hearing.
The trial court clerk is directed to file a supplemental clerk’s record containing the trial
court’s findings, recommendations, and orders with this Court no later than 30 days from
the date of this order. The court reporter is directed to file the reporter’s record of the
hearing no later than 30 days from the date of this order. If the hearing is conducted by
video teleconference, an electronic copy of the hearing shall be filed 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
supplemental clerk’s record and reporter’s record that comply with our order are filed
with the Clerk of this Court. The court coordinator of the trial court shall set a hearing
date and notify the parties.

       It is so ORDERED.


Judge’s signature: /s/ Laura C. Higley
                    

Date: July 19, 2016



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