Opinion
01-19-00863-CR
07-13-2023
Oscar Ramirez Martinez v. The State of Texas
Trial court: 178th District Court of Harris County, Trial court case number: 1617262.
ORDER
Richard Hightower, Judge.
On March 21, 2023, the Court issued an order abating the appeal and remanding to the trial court to determine whether appellant had abandoned his appeal because no brief had been filed. A supplemental reporter's record was filed on April 4, 2023 which contained a record of a hearing held on March 24, 2023 by the Honorable Inger H. Chandler. On May 19, 2023, a supplemental clerk's record was filed containing the trial court's findings, and in a document entitled, "Response to Court's Order after Abatement," stated that "the 178th District Court of Harris County Texas ("trial court"), Honorable Kelli Johnson, by and through Associate Judge Inger H. Chandler" submitted the response finding that (1) appellant had been transferred to immigration custody after his conviction, (2) counsel Charles Thompson had been unable to contact appellant, though he made attempts, since October 8, 2019, and (3) appellant had been subject to removal on November 5, 2019 and had never contacted counsel again. Based on counsel Thompson's affidavit, the trial court determined that appellant had abandoned his appeal and granted Thompson's motion to withdraw.
On June 22, 2023, this Court lifted the abatement and reinstated the appeal on the active docket. The Court set the appeal for submission on the record on July 25, 2023.
On July 7, 2023, Angela Cameron made an appearance, claiming that she represented appellant based on the attached order. This order contained a pauper's oath, not signed by appellant but signed "defendant in custody" and stated that the trial court had found appellant indigent and appointed Angela L. Cameron to represent appellant on appeal. The order was signed by the Honorable Kelli Johnson on July 6, 2023. Cameron also filed a motion in this Court asking that we withdraw the submission set on July 25, 2023.
An appellant who has filed a notice of appeal and made arrangements for the filing of the appellate record does not lose his right to appeal solely because he has been deported. See Alakhras v. State, 73 S.W.3d 434, 435 (Tex. App.-Houston [1st Dist.] 2002, no pet.). However, findings concerning whether he has effectively abandoned the appeal are necessary for this Court to move forward. See Lagos v. State, No. 03-10-00339-CR, 2011 WL 677395, at *1 (Tex. App.-Austin Feb. 24, 2011, no pet.) (noting that trial court had granted counsel's motion to withdraw based on its determination that appellant had been deported and that contact with appellant was futile).
Having received conflicting information, the Court withdraws the case from submission on July 25, 2023 and orders the appeal abated and remanded to the trial court for the trial court to immediately conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's new counsel, Angela Cameron, shall be present. Tex. R. App. 38.8(b)(2). 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 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. 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.
The trial court is directed to:
(1) determine whether appellant still wishes to prosecute the appeal or if appellant has abandoned the appeal;
(2) make any other findings and recommendations the trial court deems appropriate, including whether appellant has been deported and whether communication with counsel is futile; and
(3) 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. art. 1.051(a), (c), (d)(1), 26.04(j)(2); 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 20 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 20 days of the date of this order. If the hearing is conducted by video teleconference, a certified video recording of the hearing shall also be filed in this Court within 20 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.
It is so ORDERED.