COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Success Irhirhi v. The State of Texas
Appellate case number: 01-14-00002-CR
Trial court case number: 1905854
Trial court: County Criminal Court at Law No. 9 of Harris County
The clerk’s record and reporter’s record in this appeal were originally due on January 21,
2014. The clerk’s record was filed on January 22, 2014. On January 31, 2014 and September 15,
2014, the Clerk of this Court notified appellant that the court reporter responsible for preparing
the record in this appeal had informed the Court that appellant has not paid, or made
arrangements to pay, for the reporter’s record. See TEX. R. APP. P. 35.3(b). The Clerk further
notified appellant that unless he provided written evidence that he has paid, or made
arrangements to pay, for the reporter’s record, or provided proof that he is entitled to proceed
without payment of costs, the Court might consider the appeal without a reporter’s record. See
TEX. R. APP. P. 37.3(c). Although represented by counsel, neither appellant nor his counsel
responded to the notices.
On January 8, 2015, the State Bar of Texas notified the Court that appellant’s trial and
appellate counsel, John O. Mukoro, has been placed on active suspension from the practice of
law for six months commencing on December 21, 2014. Therefore, appellant currently is not
represented by counsel in this appeal.1
1
Although Mr. Mukoro filed appellant’s notice of appeal and appellant has a right to counsel of
his choice, appellant is not entitled to delay this case until his counsel is removed from active
suspension. See 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); 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.”).
Accordingly, we abate the appeal and remand the cause to the trial court to conduct a
hearing at which a representative of the Harris County District Attorney’s Office 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.
We direct the trial court to:
1) Determine whether appellant still wishes to pursue this appeal;
2) Determine whether appellant is now indigent, and
a. if appellant is indigent, (i) appoint substitute appellate counsel at no cost
to appellant and (ii) order the court reporter to file the reporter’s record in
this case within 30 days of the date of the hearing, at no cost to appellant;
b. if appellant is not indigent, admonish appellant regarding the dangers and
disadvantages of self-representation, and:
i. determine whether appellant is knowingly and intelligently
waiving his right to counsel and (A) if so, obtain a written waiver
of the right to counsel, or (B) if appellant does not wish to proceed
pro se, provide a deadline of no more than 20 days from the date
of the hearing by which appellant must hire substitute counsel; and
ii. provide a deadline of no more than 30 days from the date of the
hearing by which appellant must provide written evidence
demonstrating payment of the reporter’s record and further notify
appellant that failure to provide such evidence may result in
consideration of his appeal without a reporter’s record.
3) Make any other findings and recommendations the trial court deems appropriate;
and
4) Forward a record of the proceedings, together with any findings and orders
regarding appellate representation.
See TEX. CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f), 26.04.
The trial court shall have a court reporter, or court recorder, record the hearing and file
the reporter’s record with the Court no later than 30 days from the date of this order.
Additionally, the trial court’s findings and recommendations and any orders issued pursuant to
the hearing shall be included in a supplemental clerk’s record and 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 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/ Jane Bland
Acting individually Acting for the Court
Date: January 27, 2015