COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Luis Felipe Fierro v. The State of Texas
Appellate case numbers: 01-16-00906-CR
Trial court case numbers: 1302306
Trial court: 174th District Court of Harris County
On August 5, 2016, appellant, Luis Felipe Fierro, after pleading guilty to the
second-degree felony offense of tampering with a governmental record, without an
agreed punishment recommendation, was adjudicated guilty and the trial court assessed
his punishment at four years’ confinement. See TEX. PENAL CODE ANN. §§ 12.33(a),
37.10(a)(5), (c)(2)(A) (West Supp. 2016). On August 24, 2016, appellant, proceeding
pro se, timely filed a motion for new trial which the trial court denied on August 25,
2016. On November 3, 2016, appellant, proceeding pro se, timely filed a notice of
appeal. See TEX. R. APP. P. 26.2(a)(2). On November 14, 2016, the trial clerk’s letter of
assignment assigning appellant’s notice of appeal to this Court listed “TO BE
DETERMINED” as appellate attorney of record.
On November 17, 2016, the court reporter filed an info sheet in this Court stating
that the reporter’s record had not been filed because appellant had neither requested nor
paid for the record and he was not appealing as indigent. On December 15, 2016, in
compliance with a notice from the Clerk of this Court, the trial court clerk filed a
supplemental clerk’s record in this Court. This record attached the trial court’s amended
certification, signed on December 8, 2016, stating that this was not a plea-bargain case
and that appellant has the right of appeal. See TEX. R. APP. P. 25.2(a)(2)(B).
On November 30, 2016, the clerk’s record was filed in this Court including,
among other things, an order appointing Jacqueline Moore Gifford as appellant’s trial
counsel, signed on April 29, 2016, and a motion for substitution of counsel for appellant,
filed by new counsel André A. Wheeler on May 25, 2016. Because there was no written
order in the clerk’s record showing whether new counsel was appointed or retained and
whether he had been discharged by the trial court as appellant’s appellate counsel, and
this appeal has not been exhausted, André A. Wheeler continues as counsel. See TEX.
CODE CRIM. PROC. ANN. art. 26.04(j)(2) (West Supp. 2016) (requiring appointed attorney
to “represent the defendant until charges are dismissed, the defendant is acquitted,
appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as
counsel for the defendant after a finding of good cause is entered on the record”).
However, because no counsel was listed on the letter of assignment by the trial clerk, the
Clerk of this Court is directed to add André A. Wheeler as appellant’s counsel.
Accordingly, the Court sua sponte abates this appeal and remands the cause to
the trial court for further proceedings. On remand, the trial court shall immediately
conduct a hearing at which a representative of the Harris County District Attorney’s
Office and appellant’s counsel, André A. Wheeler, 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.1
We direct the trial court to:
1) determine whether appellant still wishes to pursue this appeal;
2) if appellant is indigent and wishes to pursue this appeal, determine whether
appellant’s counsel, André A. Wheeler, intends to represent appellant on
this appeal or whether counsel should be permitted to withdraw;
a. if André A. Wheeler seeks to withdraw, determine whether good
cause exists to relieve him of his duties as appellant’s counsel;
b. if good cause exists to remove counsel, enter a written order
relieving André A. Wheeler of his duties as appellant’s counsel, and
appoint substitute appellate counsel at no expense to appellant, and
direct the court reporter to file the reporter’s record with the Clerk of
this Court no later than 30 days from the date of the hearing;
c. if good cause does not exist to remove counsel, provide a final
deadline by which André A. Wheeler must file a request for the
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 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.
reporter’s record, which shall be no more than 30 days from the date
of the hearing;
3) if appellant is not indigent and André A. Wheeler does not intend to
represent appellant on appeal,
a. if good cause exists to remove counsel, enter a written order
relieving André A. Wheeler of his duties as appellant’s counsel;
b. determine whether appellant has retained a new attorney to represent
him on appeal, and, if so, obtain the name, address, and telephone
number of retained counsel;
c. if appellant has not retained counsel and wishes to proceed pro se,
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
ii. determine whether any decision by appellant to proceed pro
se is in the best interest of appellant, the State, and the
administration of justice; and
iii. if so, obtain a written waiver of the right to counsel; and
iv. set a date certain when appellant’s request and confirmation
of payment for the reporter’s record will be made, with a
copy to be filed with the Clerk of this Court, regardless of
whether this Court has yet reinstated this appeal and no later
than 30 days from the date of the hearing; or
v. if appellant does not wish to proceed pro se, provide a
deadline by which appellant must hire an attorney;
4) make any other findings and recommendations the trial court deems
appropriate; and
5) 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), (c), (d)(1), (f), 26.04 (West Supp. 2016).
The court coordinator of the trial court shall set a hearing date no later than 30
days from the date of this order and notify the parties and the Clerk of this Court of
such date. 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 the hearing. The court reporter is directed to file the reporter’s record of the
hearing within 30 days of the date of the hearing. If the hearing is conducted by video
teleconference, a certified video recording of the hearing shall also be filed in this Court
within 30 days of the date of this hearing.
This appeal is abated, treated as a closed case, and removed from this Court’s
active docket. This appeal will be reinstated on this Court’s active docket when a
compliant supplemental clerk’s record and the supplemental reporter’s record, if any, are
filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley
Acting individually Acting for the Court
Date: December 20, 2016