                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                  ORDER OF ABATEMENT

Appellate case name:        Rodney Carnell Mays v. The State of Texas

Appellate case number:      01-13-00805-CR

Trial court case number:    1875634

Trial court:                County Criminal Court at Law No. 7 of Harris County

        On September 4, 2013, appellant was convicted after a bench trial of the class A
misdemeanor offense of assault of a family member for which he received a sentence of
fifty-six days confinement in county jail, but he has since been released. On September
6, 2013, appellant’s counsel timely filed a notice of appeal. On October 29, 2013, the
clerk’s record was filed. On February 20, 2014, the Clerk of this Court granted
appellant’s second extension request to file appellant’s brief until April 22, 2014, and
stated that absent extraordinary circumstances, it would not grant any further extensions.

        On April 24, 2014, appellant’s counsel, Clement B. Fink, filed a motion to
withdraw the appeal, stating that appellant no longer wanted to pursue his appeal.
However, on May 13, 2014, because appellant’s counsel had failed to obtain appellant’s
signature as required by Texas Rule of Appellate Procedure 42.2(a), this Court denied
appellant’s motion, construed as a motion to dismiss. In that order, this Court also noted
that it would consider a properly filed motion to dismiss if one was filed.

       On May 22, 2014, the Clerk of this Court issued a notice to appellant’s counsel,
notifying counsel that if this Court did not receive appellant’s brief within ten days of that
notice, it may order the trial court to conduct a hearing as required by Texas Rule of
Appellate Procedure 38.8(b)(2). Appellant did not respond.
       We, therefore, abate this appeal and remand the cause to the trial court for further
proceedings. On remand, the trial court shall conduct a hearing at which a representative
of the Harris County District Attorney’s Office and appellant’s counsel, Clement B. Fink,
shall be present. Appellant shall also be present for the hearing in.1

       We direct the trial court to:

          1) determine whether appellant still wishes to pursue this appeal;
          2) if appellant does not wish to prosecute the appeal, provide a final deadline
             by which both appellant’s counsel and appellant sign a written motion to
             dismiss and counsel files it with this Court, which shall be no more than 30
             days from the date of the hearing;
          3) if appellant does wish to prosecute the appeal, determine whether appellant
             is indigent;
          4) if so, determine whether good cause exists to relieve Clement B. Pink of his
             duties as appellant’s counsel, specifically addressing whether counsel’s
             failure to timely file a brief constitutes good cause for removal;
                 a. if good cause exists to remove counsel, enter a written order
                     relieving Clement B. Pink of his duties as appellant’s counsel,
                     including in the order the basis for finding good cause for his
                     removal, 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 Clement B. Pink must file appellant’s brief,
                     which shall be no more than 30 days from the date of the hearing;
          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), 26.04(j)(2) (West Supp.
2013); TEX. R. APP. P. 38.8(b).

       The trial court shall have a court reporter record the hearing and file the reporter’s
record with this Court within 30 days of the date of this order. 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 30 days of the date of this order. See TEX. R.
APP. P. 34.5(c).


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       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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       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 the reporter’s record of the hearing are filed in this
Court.

       If appellant files a motion to dismiss which complies with Texas Rule of Appellate
Procedure 42.2(a) within thirty days of the date of the hearing, together with a motion
requesting that we reinstate the appeal, we may reinstate the appeal.

        The court coordinator of the trial court shall set a hearing date, which shall be no
later than 30 days from the date of this order, and notify the parties and the Clerk of this
Court of such date.

       It is so ORDERED.

Judge’s signature: /s/ Evelyn V. Keyes
                     Acting individually

Date: September 18, 2014




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