Opinion
Appellate case number: 01-20-00088-CR
04-08-2021
Clone Kinsey v. The State of Texas
ORDER Trial court case number: 1650087 Trial court: 228th District Court of Harris County
On March 30, 2021, Cynthia Henley, court-appointed counsel for appellant Clone Kinsey filed a motion to abate the above-referenced appeal. In the motion, Henley requests that the appeal be abated and remanded to the trial court for appointment of new appellate counsel because she has accepted new employment. See TEX. CODE CRIM. PROC. art. 1.051(d) (instructing that "eligible indigent defendant is entitled to have the trial court appoint an attorney to represent him in . . . an appeal to the court of appeals"); see also TEX. CODE CRIM. PROC. art. 26.04 (conferring trial courts with authority to appoint new counsel).
A request to withdraw as court-appointed counsel must comply with Texas Rule of Appellate Procedure 6.5. TEX. R. APP. P. 6.5. The motion to abate is not accompanied by, and does not itself meet the requirements of, a motion to withdraw under Rule 6.5. See TEX. R. APP. P. 6.5(a) (listing information and statements motion for leave to withdraw as counsel "must contain," including party's name and last known address and telephone number; statement that copy of motion was delivered to party; and statement that party was notified in writing of right to object to motion) (emphasis added); TEX. R. APP. P. 6.5(b) ("The motion must be delivered to the party in person or mailed—both by certified and first-class mail—to the party at the party's last known address.") (emphasis added).
To the extent Henley files a motion to withdraw in compliance with the Texas Rules of Appellate Procedure, this Court will be required to enter an order abating this appeal and directing the trial court to appoint substitute counsel, at no expense to appellant, to represent him on appeal. See TEX. CODE CRIM. PROC. art. 1.051(a), (c), (d)(1), 26.04(a), (b)(1), (p); see also Brooks v. State, No. 03-16-00511-CR, 2016 WL 5363737, at *1 (Tex. App.—Austin Sept. 22, 2016) (abating appeal upon filing of motion to withdraw as counsel and remanding cause to trial court for hearing). --------
It is so ORDERED. Judge's signature: /s Amparo Guerra
Acting individually Date: April 8, 2021