COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF CONTINUING ABATEMENT
Appellate case name: R. T. Hardge v. The State of Texas
Appellate case number: 01-15-00815-CR
Trial court case number: 1223224
Trial court: 180th District Court of Harris County
On December 17, 2015, we abated this case and remanded it to the trial court. In the
abatement order, we directed the trial court to determine whether appellant wished to prosecute
his appeal and, if so, resolve the question of representation on appeal. We directed the trial court
to conduct a hearing; the trial court clerk to prepare and file a supplemental clerk’s record
containing the trial court’s findings and conclusions, and any orders; and the court reporter to file
a reporter’s record of the hearing no later than January 19, 2016. A supplemental clerk’s record
and reporter’s record have not been filed.
Accordingly, we continue the abatement of this appeal and remand to the trial court to
immediately conduct a hearing at which a representative of the Harris County District Attorney’s
Office and appellant’s appointed counsel, Tanya Rolland, shall be present. Appellant also shall
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.1
We direct the trial court to make appropriate written findings of fact and conclusions of
law and sign any necessary orders on these issues:
1) Determine whether appellant wishes to pursue this appeal;
2) If appellant wishes to pursue this appeal, determine whether appellant’s counsel,
Tanya Rolland, intends to represent appellant on appeal or whether counsel
should be permitted to withdraw;
1 Any 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 among the trial court, appellant, and any attorneys representing the State or
appellant. On his request, appellant and his counsel shall be able to communicate
privately without being recorded or heard by the trial court or the State’s attorney.
3) If counsel is permitted to withdraw, enter a written order granting her request to
withdraw and appoint substitute counsel at no expense to appellant;
4) If appellant wishes to pursue this appeal, order the court reporter to prepare and
file with this Court the proceedings from the hearing on the motion for DNA
testing without charge to appellant;
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. 26.04(p); 64.01(c), (p) (West Supp. 2015); Ex parte
Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011); Gutierrez v. State, 307 S.W.3d 318,
321, 322 (Tex. Crim. App. 2010); see also Ward v. State, 740 S.W.2d 794, 798 (Tex. Crim. App.
1972) (requiring, after permitting appointed counsel to withdraw, trial court must either find
appellant knowingly and voluntarily waived right to appointed counsel or appoint counsel);
Fowler v. State, 974 S.W.2d 112, 114 (Tex. App.—Austin 1994, pet. ref’d) (order) (“When a
trial court permits appointed counsel to withdraw, that court must appoint substitute counsel in
the absence of a clear showing in the record that the defendant is no longer indigent or that the
defendant desires to represent himself.”).
The trial court shall have a court reporter 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 30 days of the date of this order.
The appeal remains 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/ Russell Lloyd
Acting individually Acting for the Court
Date: March 8, 2016
RT Hardge v. State
Combined Opinion