White v. State, 102220 TXCA1, 01-20-00238-CR

• Opinion Judge: Russell Lloyd Judge
• Party Name: Traymone Edward White v. The State of Texas
• Case Date: October 22, 2020
• Court: Texas Court of Appeals

Traymone Edward White

v.

The State of Texas

No. 01-20-00238-CR

Court of Appeals of Texas, First District, Houston

October 22, 2020

177th District Court of Harris County, Texas Trial court No. 1527803

ORDER

Russell Lloyd Judge

Appellant timely filed a notice of appeal of a judgment of conviction for the felony offense of murder. See Tex. Penal Code § 19.02. The clerk's record was filed on April 27, 2020. The reporter's record was filed on May 26, 2020 and June 8, 2020. On July 17, 2020, the Clerk of this Court notified appellant that his brief was late and, absent a satisfactory response within 10 days, the Court might be required to order the trial court to conduct a hearing pursuant to rule Texas Rule of Appellate Procedure 38.8. See Tex. R. App. P. 38.8(b)(2), (3). Appellant has not responded.

Rule 38.8(b) provides that in a criminal case, an appellant's failure to file a brief does not authorize dismissal of the appeal or consideration of the appeal without briefs, unless the trial court has found that the appellant (1) no longer desires to prosecute the appeal, or (2) is not indigent but has not made the necessary arrangements for filing a brief. Tex.R.App.P. 38.8(b)(1), (4). Accordingly, on October 13, 2020, we abated this appeal and remanded the cause to the trial court for further proceedings pursuant to rule 38.8(b).

The trial court was ordered to immediately conduct a hearing at which the appellant and a representative of the Harris County District Attorney's office would be present in person or via video teleconference. The trial court has advised this Court that appellant's unit in the Texas Department of Criminal Justice does not have video teleconferencing capabilities. Accordingly, the court may conduct a telephonic hearing without video.^[1] The court coordinator for the trial court shall set a date for the hearing and notify the parties, including appellant. We direct the trial court to make appropriate written findings of fact and conclusions of law and sign any necessary orders on these issues: 1) Whether appellant wishes to pursue this appeal;

2) If so, whether appellant's counsel has abandoned the appeal;

3) If so, whether appellant is now indigent and entitled to appointed counsel, and, if indigent, appoint appellate counsel at no expense to appellant; and

4) If appellant is not indigent and his counsel has abandoned the appeal:

a....