Opinion
11-23-00148-CR
08-10-2023
ROMAN ANGELO ROYAL, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. See Tex. R. App. P. 47.2(b).
On Appeal from the 132nd District Court Scurry County, Texas Trial Court Cause No. 11110
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
ORDER
W. STACY TROTTER, JUSTICE.
We have been advised that Appellant's lead counsel, Robert R. Jones III, has filed in the trial court a proposed order allowing him to withdraw as standby counsel and a proposed order to appoint appellate counsel. After the trial court signed its final judgment in this cause, Jones filed a motion for new trial and a notice of appeal on Appellant's behalf in the trial court. The reporter's record and the clerk's record have not yet been filed and are due on September 25, 2023. We abate the appeal.
The trial court advises that Jones was retained by Appellant's family to serve as standby counsel in the trial court. On appeal, Jones is lead counsel for Appellant because he signed the notice of appeal. See TEX. R. APP. P. 6.1(a).
Because Jones is retained and is serving as Appellant's lead counsel on appeal, his motion to withdraw should have been filed been filed in this court. See TEX. R. APP. P. 6.5. However, we are concerned that Appellant may be entitled to appointed counsel on appeal. In this circumstance, the trial court alone has the authority to appoint appellate counsel for Appellant. See TEX. CODE CRIM. PROC. ANN. arts. 1.051(d), 26.04 (West Supp. 2022); Enriquez v. State, 999 S.W.2d 906, 907-08 (Tex. App.-Waco 1999, no pet.). In this regard, we note that the trial court retains jurisdiction to appoint or substitute counsel. See CRIM. PROC. art. 26.04(j)(2); Enriquez, 999 S.W.2d at 908.
The trial court is requested to conduct a hearing to determine whether Appellant is entitled to appointed counsel. We note that Appellant need not appear in person at the hearing and that the trial court may permit him to appear via telephone or other remote means. The trial court shall determine:
1. Whether Appellant desires to prosecute this appeal;
2. Whether Appellant is indigent and is therefore entitled to appointed counsel;
3. If Appellant is not indigent, whether Appellant has retained counsel for this appeal; and
4. If Appellant is indigent, whether Appellant desires to have counsel appointed to represent him in this appeal or whether, after being warned of the dangers and disadvantages of self-representation, Appellant competently, intelligently, and knowingly chooses to exercise the right to represent himself on appeal.
If the trial court determines that Appellant is indigent and is exercising his right to represent himself, evidence must be developed, and the record must show, that Appellant's decision to proceed without counsel is knowingly and intelligently made. See Faretta v. California, 422 U.S. 806 (1975); Ex parte Davis, 818 S.W.2d 64, 66-67 (Tex. Crim. App. 1991); Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987).
If, however, the trial court determines that Appellant is indigent and that he is not exercising his right of self-representation, the trial court shall appoint counsel to represent Appellant in this appeal, at which time we will entertain a motion from Jones to withdraw. See Tex. R. App. P. 6.5.
The trial court is directed to enter findings of fact and conclusions of law and to make any appropriate recommendations regarding this matter to this court. The district clerk is directed to prepare and file a supplemental clerk's record containing the findings, recommendations, and any orders signed by the trial court with the clerk of this court. The court reporter for the 132nd District Court is directed to prepare and forward to this court the reporter's record from the hearing. These records shall be filed in this court on or before September 11, 2023. The clerk's record and reporter's record are due within thirty days after the date this appeal is reinstated or September 25, 2023, whichever is later. This appeal is abated.
IT IS SO ORDERED.