Opinion
Appellate case number: 01-20-00494-CR
01-12-2021
Patrick Campbell v. The State of Texas
ORDER OF ABATEMENT Trial court case number: 10-CR-3689 Trial court: 122nd District Court of Galveston County
Appellant, Patrick Campbell, has filed a pro se notice of appeal of the trial court's June 2, 2020 order denying his request for post-conviction DNA testing of evidence pursuant to Chapter 64 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 64.01, 64.03. The appellate record reflects that appellant has made four previous requests to obtain appointed counsel to pursue the relief requested in the motion, each of which were denied by the trial court.
The clerk's record was filed on August 17, 2020, and no reporter's record was taken. Accordingly, appellant's brief was due on September 16, 2020. However, no brief was filed. On September 22, 2020, the Clerk of this Court notified appellant that the time for filing his brief had expired and, unless the Court received a motion for an extension of time, with appellant's brief, or a motion for an extension of time to file appellant's brief within ten days of the date of the notice, the Court would be required to order the trial court to conduct a hearing pursuant to Texas Rule of Appellate Procedure 38.8. See TEX. R. APP. P. 10.5(b), 38.8(b)(2), (3). Appellant has not filed a brief or otherwise responded to the Court's notice.
Accordingly, we abate the appeal and remand for the trial court to immediately conduct a hearing at which a representative of the Galveston County District Attorney's Office and appellant shall be present. TEX. R. APP. P. 38.8(b)(2), (3). Appellant may be present for the hearing in person or, because he is incarcerated, at the trial court's discretion, he may participate in the hearing by closed-circuit video teleconferencing.
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. --------
The trial court is directed to:
(1) determine whether appellant wishes to prosecute the appeal;
(2) determine whether appellant is indigent, and:
a. if indigent, determine whether appellant is entitled to counsel pursuant to article 64.01(c) of the Texas Code of Criminal Procedure, and if so, appoint appellate counsel at no expense to appellant and set a date by which counsel will file a brief, no later than thirty days from the date of the hearing; or
b. if not indigent, and if counsel has been retained, determine whether such retained counsel has abandoned the appeal; or
c. if not indigent, and if counsel has not been retained, admonish appellant of the dangers and disadvantages of self-representation and: (i) determine whether appellant is knowingly and intelligently waiving his right to counsel and, if so, obtain a written waiver of the right to counsel and set a date by which the brief is due, no later than thirty days from the date of the hearing, or (ii) if appellant does not wish to proceed pro se, set a date by which appellant must hire an attorney, no later than thirty days from the date of the hearing;
(3) make any other findings and recommendations the trial court deems appropriate; andSee TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), 26.04(j)(2), 64.01(c); TEX. R. APP. P. 38.8(b).
(4) enter written findings of fact, conclusions of law, and recommendations as to these issues.
The trial court shall have a court reporter record the hearing and file the reporter's record with this Court within thirty 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 thirty 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 and the reporter's record of the hearing are filed in this Court. The court coordinator of the trial court shall set a hearing date and notify the parties and the Clerk of this Court of such date.
It is so ORDERED. Judge's signature: /s/ April Farris
[v] Acting individually [ ] Acting for the Court Date: January 12, 2021