                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                  ORDER OF ABATEMENT

Appellate case name:        Mauricio Izaguirre v. The State of Texas

Appellate case number:      01-16-00486-CR

Trial court case number:    1341419

Trial court:                179th District Court of Harris County

       This case involves an appeal from a judgment, signed by the trial court on April 4,
2016, in which the appellant, Mauricio Izaguirre, pleaded guilty, without an agreed
punishment recommendation, to the felony offense of murder for which the judge
assessed his punishment at thirty-five years’ confinement. The trial court certified
appellant’s right of appeal because this was not a plea-bargain case and appellant had a
right of appeal as to punishment. See TEX. R. APP. P. 25.2(a)(2)(B).

       Proceeding pro se, appellant filed a notice of appeal from the judgment of
conviction, which was assigned to this Court. On June 17, 2016, the trial clerk assigned
this appeal to this Court, but listed “TO BE DETERMINED” as appellant’s appellate
counsel. On June 21, 2016, the reporter filed an information sheet in this Court noting
that, while there was a reporter’s record and appellant was not indigent, the reporter had
not yet received a request or payment to prepare the reporter’s record from the appellant.

       On June 23, 2016, appellant filed a pro se combined motion for an extension of
time to file the appellate records and for the appointment of appellate counsel. Because
the clerk’s records have not been filed in this Court, a review of the trial clerk’s website
shows that retained counsel, Mark Christopher Thering, represented appellant in the trial
court. 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); Jones v. State, 98
S.W.3d 700, 703 (Tex. Crim. App. 2003).

       Because the trial clerk’s docket sheet does not refer to an order from the trial court
allowing counsel to withdraw, and this appeal has not been exhausted, Mark Christopher
Thering 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”). Thus, appellant’s
two pro se motions, both filed on June 23, 2016, are dismissed as moot because he is not
entitled to hybrid representation. See Robinson v. State, 240 S.W.3d 919, 922 (Tex.
Crim. App. 2007). The Clerk of this Court has been directed to add Mark Christopher
Thering as appellant’s counsel.

       However, trial counsel did not sign appellant’s notice of appeal, indicating that
counsel did not intend to represent appellant on appeal. See Whitehead, 130 S.W.3d at
879; Jones, 98 S.W.3d at 703. Accordingly, the Court sua sponte 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, Mark Christopher Thering, 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 Mark
          Christopher Thering of his duties as appellant’s counsel;
             a. if good cause exists to remove counsel, enter a written order relieving
                Mark Christopher Thering of his duties as appellant’s counsel, and
                appoint substitute appellate counsel at no expense to appellant; or
             b. if good cause does not exist to remove counsel, provide a final deadline
                by which Mark Christopher Thering must file requests for the clerk’s
                and reporter’s records in the trial court, which shall be no more than 30
                days from the date of the hearing;
      (4) if appellant is not indigent and Mark Christopher Thering does not intend to
          represent appellant on appeal,
             a.     determine whether appellant has retained an attorney to represent

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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                     him 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 his 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; or
                    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/ Evelyn V. Keyes
                   

Date: July 19, 2016




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