Opinion
Appellate case number: 01-15-00815-CR
09-20-2016
R. T. Hardge v. The State of Texas
SECOND ORDER OF CONTINUING ABATEMENT Trial court case number: 1223224 Trial court: 180th District Court of Harris County
We previously abated this case and directed the trial court to determine whether appellant wished to prosecute his appeal and, if so, resolve the question of representation on appeal. The court reporter has filed a reporter's record of the March 31, 2016 abatement hearing. On May 16 and June 1, 2016, the trial court clerk filed supplemental clerk's records that contain the trial court's January 6, 2016 order granting appointed trial counsel's motion to withdraw and the trial court's findings of fact and conclusions of law signed on May 18, 2016. The trial court concluded that appellant "intends to pursue an appeal" and "desires to represent himself." The trial court did not appoint counsel to represent appellant on appeal.
In the previous abatement orders, we directed the trial court to appoint substitute appellate counsel if the court allowed appellant's appointed trial counsel to withdraw. Article 64.01(c) of the Texas Code of Criminal Procedure provides that a convicted person is entitled to appointed counsel under certain circumstances during a chapter 64 proceeding. The article does not differentiate between the trial and appellate proceedings. Consequently, an indigent convicted person is entitled to appointed counsel to prosecute an appeal under chapter 64. See Watson v. State, No. 07-06-0414-CR, 2006 WL 3327814, at *1 (Tex. App.—Amarillo Nov. 16, 2006, no pet.) (order, not designated for publication) (citing Gray v. State, 69 S.W.3d 835, 837 (Tex. App.—Waco, no pet.)); see generally Ward v. State, 740 S.W.2d 794, 798 (requiring, after permitting appointed counsel to withdraw, trial court must either find appellant knowingly and voluntarily waived right to appointed counsel or appoint counsel). Because the trial court appointed counsel to represent appellant in the trial court, the record indicates that appellant is entitled to court-appointed counsel on appeal. Accordingly, we direct the trial court to appoint counsel, at no expense to appellant, to represent appellant on appeal.
The trial court clerk is directed to file a supplemental clerk's record containing the trial court's order appointing counsel to represent appellant for purposes of this appeal with 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 is filed in this Court.
It is so ORDERED. Judge's signature: /s/ Russell Lloyd
[v] Acting individually [ ] Acting for the Court Date: September 20, 2016