Opinion
01-23-00002-CR
06-22-2023
Jenise Djeree Benjamin v. The State of Texas
Trial court: 21st District Court of Washington County Trial court case No.18781
ORDER
PETER KELLY JUDGE
Appellant Jenise Djeree Benjamin is appealing from her conviction for the offense of assault against a peace officer. This Court's records indicate that appellant is represented by retained counsel ChiQuia J. Roberson. The clerk's record was due on March 3, 2023. On April 3, 2023, the trial court clerk advised that appellant had not made payment arrangements for the filing of the clerk's record and had not designated items to be included in the clerk's record.
An appellant need not designate items to be included in the clerk's record. Under Rule 34.5(a), the clerk's record must contain the following items unless the parties designate the filings to be included: the indictment or information, any special plea or defense motions presented to the court and overruled, any written waive or stipulation, the court's docket sheet, the court's charge and the jury's verdict, the judgment of conviction, any notice of appeal, any post-judgment motion, and the trial court's certification of the defendant's right to appeal. See Tex. R. App. P. 34.5(a). Thus, the trial court clerk's statement that there has been no designation of items to be included in the clerk's record is not a reason for failing to file the clerk's record.
However, the failure to make payment arrangements requires this Court to request a hearing in the trial court. Accordingly, we abate the appeal and remand to the trial court for a hearing to determine why appellant has not made payment arrangements for the filing of the clerk's record. On remand, the trial court shall conduct a hearing within 20 days of the date of this order at which a representative of the Washington County District Attorney's Office and appellant's retained counsel ChiQuia J. Roberson 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 that provides for a simultaneous compressed full motion video and interactive communication of image and sound.
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.
We direct the trial court to determine the following:
1) whether appellant still wishes to pursue this appeal;
2) whether appellant is indigent and should be required to pay the costs on appeal;
3) whether appellant's retained counsel ChiQuia J. Roberson continues to represent appellant and if not, whether appellant intends to hire new counsel;
a. If so, provide a deadline by which appellant must hire counsel, which shall be no more than 30 days from the date of the hearing;
b. If not, the trial court may appoint counsel to represent appellant on appeal;
4) Set a deadline of no more than 30 days from the date of the hearing for the filing of the clerk's record in this Court;
5) Make any other findings and recommendations the trial court deems appropriate; and
6) Issue 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); Ward, 740 S.W.2d 794,798 (Tex. Crim. App. 1987); Tex.R.App.P. 35.3(a), (c).
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 within 30 days of the date of this order. The court reporter is directed to file the reporter's record of the hearing within 30 days of the date of this order. If the hearing is conducted by video teleconference, a certified recording of the hearing shall also be filed in this Court within 35 days of 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 is filed in this court. The court will also consider an appropriate motion to reinstate the appeal filed by either party, or the court may reinstate the appeal on its own motion.
It is so ORDERED.