                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                   ORDER OF ABATEMENT

Appellate case name:         Cessica Desha Darden v. The State of Texas

Appellate case numbers:      01-16-00399-CR

Trial court case numbers: 1412122

Trial court:                 179th District Court of Harris County

        On April 22, 2016, appellant, Cessica Desha Darden, was convicted after pleading
guilty to the second-degree felony offense of aggravated assault with a deadly weapon for
which the trial court assessed her punishment at fifteen years’ confinement. Appellant’s
plea bargain was without an agreed recommendation pending a pre-sentencing
investigation report and hearing, but with the State agreeing to reduce the first-degree
felony offense of aggravated robbery—serious bodily injury—to the lesser-included
offense. In the judgment of conviction, the trial court also made a special finding of
“APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.”

        On May 18, 2016, the trial clerk’s letter of assignment was filed in this Court and
listed “TO BE DETERMINED” as appellate attorney of record. Appellant’s notice of
appeal, filed on April 22, 2016 in the trial court, had indicated that André L. Ligon,
appellant’s trial counsel, had been granted permission to withdraw as counsel on appeal
by the trial court, but that court did not appoint new counsel for appellant. The trial court
also ordered the court reporter to prepare and file the reporter’s record without charge to
appellant.

       However, the trial court’s certification of appellant’s right of appeal, which was
filed on October 2, 2014 with the trial court, stated that this was not a plea-bargain case
and that appellant had the right of appeal. The clerk’s record, filed in this Court on June
15, 2016, did not contain an amended trial court’s certification of appellant’s right of
appeal, as required with the April 22, 2016 judgment of conviction. See TEX. R. APP. P.
25.2(a)(2) (stating that “[t]he trial court shall enter a certification of the defendant’s right
of appeal each time it enters a judgment of guilt or other appealable order.”). Thus, the
judgment appears to be inconsistent with the certification. This order constitutes notice
to all parties of the apparent defective certification of the right of appeal. See id. 37.1.

       Accordingly, the Court sua sponte abates this appeal and remands the cause to
the trial court for further proceedings. On remand, the trial court shall immediately
conduct a hearing at which a representative of the Harris County District Attorney’s
Office 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 use of a closed-circuit video teleconferencing system.1


       We direct the trial court to:
          1) Execute an amended certification of appellant’s right to appeal indicating
             whether or not appellant has the right of appeal in this case;
          2) If appellant has the right of appeal, determine whether appellant still wishes
             to pursue this appeal;
                 a. If appellant wishes to pursue this appeal, determine whether
                    appellant is currently indigent;
                 b. If appellant is currently indigent, appoint substitute appellate counsel
                    at no expense to appellant and direct the court reporter to file the
                    reporter’s record with the Clerk of this Court no later than 30 days
                    from the date of the hearing;
                 c. If appellant is not currently indigent and wishes to proceed pro se,
                    admonish appellant of the dangers and disadvantages of self-
                    representation, and:
                         i. determine whether appellant is knowingly and intelligently
                            waiving 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; and
                       iii. if so, obtain a written waiver of the right to counsel; and
                       iv. set a date certain when appellant’s request and confirmation
                            of payment for the reporter’s record will be made, with a
                            copy to be filed with the Clerk of this Court, regardless of
                            whether this Court has yet reinstated this appeal and no later
                            than 30 days from the date of the hearing; or

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 her counsel, if appointed by the
       trial court and present for the hearing, shall be able to communicate privately without
       being recorded or heard by the trial court or the attorney representing the State.
                 d. If appellant does not wish to proceed pro se, provide a deadline by
                    which appellant must hire an attorney, which shall be no later than
                    30 days from the date of the hearing;
          3) Make any other findings and recommendations the trial court deems
             appropriate; and
          4) 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(j)(2), (p) (West
Supp. 2015); TEX. R. APP. P. 25.2(a)(2), (d); Ward v. State, 740 S.W.2d 794, 798 (Tex.
Crim. App. 1987); Lopez v. State, 486 S.W.2d 559, 560 (Tex. Crim. App. 1972); Fowler
v. State, 874 S.W.2d 112, 114 (Tex. App.—Austin 1994, order, pet. ref’d).


        The court coordinator of the trial court shall set a hearing date no later than 30
days from the date of this order and notify the parties and the Clerk of this Court of
such date. The trial court clerk is directed to file a supplemental clerk’s record containing
the trial court’s amended certification of appellant’s right of appeal and any findings,
recommendations, and orders with this Court within 30 days of the date of the hearing.
The court reporter is directed to file the reporter’s record of the abatement hearing within
30 days of the date of the hearing. If the hearing is conducted by video teleconference, a
certified video recording of the hearing shall also be filed in this Court within 30 days of
the date of this hearing.

        This appeal is abated, treated as a closed case, and removed from this Court’s
active docket. This appeal will be reinstated on this Court’s active docket when a
compliant supplemental clerk’s record and the supplemental reporter’s record, if any, are
filed in this Court.

       It is so ORDERED.


Judge’s signature: /s/ Laura Carter Higley
                     Acting individually

Date: August 16, 2016
