Cody Allen Waters v. State, 04-16-00241-CR

Appellant Cody Allen Waters’s appellate brief was overdue after appointed counsel Andrea Polunsky repeatedly missed deadlines.
Court initially abated the appeal, held an abandonment hearing, found Waters wished to prosecute, allowed Polunsky to withdraw, and appointed Suzanne M. Kramer.
New briefing deadlines were set (Jan 23, 2017; later ordered Feb 13, 2017), but Kramer failed to file a brief or request an extension.
The Fourth Court of Appeals ordered a second abatement and remand to the trial court under Texas Rule of Appellate Procedure 38.8(b).
The trial court must hold an abandonment hearing, with counsel Kramer physically present, to determine whether Waters still wants to proceed and whether Kramer will file the brief or a motion to dismiss within ten days.
The trial court must file supplemental clerk’s and reporter’s records within 30 days, including transcript, findings/conclusions, and recommendations; appellate deadlines are suspended pending further order.

Issue	Appellant's Argument	State's Argument	Held
Whether appeal should be abated/remanded for abandonment hearing when appointed counsel fails to file brief	Waters desires to prosecute appeal and seeks effective representation	State seeks enforcement of appellate rules and compliance by appointed counsel	Court abated and remanded for abandonment hearing under Rule 38.8(b)
Whether trial court should permit withdrawal and appoint new counsel after missed deadlines	Waters previously objected to initial counsel and wished to continue appeal; wants representation	State defers to court’s appointment process but expects counsel to comply with deadlines	Trial court previously allowed withdrawal (Polunsky) and must appoint new counsel if Kramer will not timely file brief
Whether appointed counsel must be physically present at abandonment hearing	Waters’ desire may be proved by affidavit or electronic appearance	Court requires counsel’s physical presence to assess counsel’s intent and ability to proceed	Court ordered Kramer to be physically present at the hearing
Whether appellate court should suspend deadlines and consider contempt against counsel	Waters seeks timely advocacy; counsel’s noncompliance threatens waiver	State supports enforcement measures, including potential contempt	Court suspended appellate deadlines and stated it may consider contempt proceedings based on supplemental record

Samaniego v. State, 952 S.W.2d 50 (Tex. App.—San Antonio 1997) (discusses procedure for abatement and abandonment hearings)
In re Fisch, 95 S.W.3d 732 (Tex. 2003) (addressing appellate counsel noncompliance and possible sanctions)