COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Vanessa Marie Van-Ness v. The State of Texas
Appellate case number: 01-13-00607-CR
Trial court case number: 11CR1523
Trial court: 405th District Court of Galveston County
Appellant’s retained counsel, James M. Bennett, has not filed a brief on appellant’s
behalf. The complete record was filed in the above-referenced appeal on October 1, 2013;
therefore, appellant’s brief was due on October 31, 2013. See TEX. R. APP. P. 38.6(a). After
granting appellant’s motions for extension of time to file her brief, appellant’s brief was due to
be filed on December 16, 2013. On January 28, 2014, the Clerk of this Court notified appellant’s
counsel, James M. Bennett, that a brief had not been filed and, unless appellant filed a motion
requesting an extension of time along with appellant’s brief or a motion to extend time to file
appellant’s brief within 10 days, the Court might be required to order the trial court to conduct a
hearing pursuant to rule 38.8. See TEX. R. APP. P. 38.8(b)(2), (3). Appellant’s counsel has not
filed a response or a brief on appellant’s behalf.
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’s counsel, James M. Bennett, shall be present. See 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.1
The trial court shall have a court reporter record the hearing. The trial court is directed to:
(1) make a finding on whether appellant wishes to prosecute the appeal;
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 appellant’s request, appellant and her counsel shall be able to
communicate privately without being recorded or heard by the trial court or the attorney
representing the State.
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(2) if appellant wishes to prosecute the appeal, determine whether counsel James M.
Bennett has abandoned the appeal;
(3) if counsel James M. Bennett has not abandoned the appeal:
a. inquire of counsel the reasons, if any, that he has failed to file a brief on
appellant’s behalf;
b. determine whether appellant has paid counsel’s fee for preparing an
appellate brief and determine whether appellant has made any other
necessary arrangements for filing a brief; and
c. set a date certain when appellant’s brief is due, regardless of whether this
Court has yet reinstated the appeal and no later than 30 days from the date
of the hearing;
(4) if James M. Bennett has abandoned this appeal, enter a written order relieving James
M. Bennett of his duties as appellant’s counsel, including in the order the basis for
the finding of abandonment, determine whether appellant is indigent, and:
a. if appellant is now indigent, appoint substitute appellate counsel at no
expense to appellant;
b. if appellant is not indigent, 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, if so, obtain a written waiver of the right to
counsel and set a date certain when appellant’s brief is due, regardless
of whether this Court has yet reinstated the appeal and no later than 30
days from the date of the hearing; or,
ii. if appellant does not wish to proceed pro se, provide a deadline by
which appellant must hire an attorney, which must be no more than 30
days from the date of the hearing;
(5) make any other findings and recommendations the trial court deems appropriate; and
(6) 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), (d)(1), (f) (West Supp. 2013); TEX. R. APP. P.
38.8(b); Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003) (stating that
presumption in favor of right to choice of counsel may be overridden by other factors relating to
fair and orderly administration of justice); Webb v. State, 533 S.W.2d 780, 784, 785 (Tex. Crim.
App. 1976) (stating that criminal defendant may not manipulate right to choose counsel so as to
interfere with fair administration of justice; “The trial court should therefore admonish an
accused who desires to represent himself regarding the wisdom and practical consequences of
that choice.”); Carter v. State, No. 01-95-00977-CR, 1997 WL 184385, *1 (Tex. App.—Houston
[1st Dist.] April 17, 1997, pet. ref’d) (not designated for publication) (“Thus, the public interest
in the fair and orderly administration of justice may be greater than an accused’s right to have
counsel of his own choice.”); cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g) (requiring trial court
to advise defendant of dangers and disadvantages of self-representation prior to proceeding to
trial), 26.04(j)(2) (West Supp. 2013) (authorizing trial court to order appointed counsel to
withdraw after finding of good cause is entered on record).
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The trial court clerk is directed to file a supplemental clerk’s record containing the trial
court’s findings and recommendations with this Court no later than 30 days from the date of this
order. The court reporter is directed to file the reporter’s record of the hearing no later than 30
days from 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 no later than 30 days from 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 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/ Jim Sharp
Acting individually Acting for the Court
Date: August 21, 2014
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