Opinion
10-22-00368-CR
08-25-2023
ANTONIO DEMONN TOWNSEND, Appellant v. THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2018-455-C1
Before Chief Justice Gray, Justice Johnson, and Justice Smith
ORDER GRANTING WITHDRAWAL ABATEMENT ORDER
PER CURIAM
Appellant's brief was due February 2, 2023. Since early March, appellant and his counsel tried coordinating the discussion, signing, and returning of a "motion to dismiss" the notice appeal which would result in the dismissal of the appeal. Appellant's fifth motion for extension of time to file his brief was filed on June 5, 2023, requesting another 60 days to accomplish the signing and returning of the dismissal motion.
Rather than grant the motion, we abated the appeal and remanded the case to the trial court to hold a hearing to determine whether appellant wished to dismiss his appeal or continue to pursue his appeal. After a hearing via Zoom, appellant stated on the record that he wished to pursue the appeal of his conviction.
On July 25, 2023, retained counsel filed a Motion to Withdraw as Counsel, asserting good cause exists for withdrawal, as counsel is unable to effectively communicate with appellant to be able to adequately represent appellant and that appellant has failed to comply with the terms of the employment agreement with counsel. Specifically, counsel asserts that appellant has refused to communicate with counsel and has failed to pay for the remainder of counsel's fee as provided by the employment agreement. Counsel's motion substantially complies with Rule 6.5 of the Texas Rules of Appellate Procedure regarding the withdrawal of counsel.
Because appellant's brief was due August 23, 2023, and appellant had ceased all communication with counsel, counsel has now filed an Anders brief asserting counsel has diligently reviewed the record and, after reviewing the record, finds there are no non-frivolous grounds for appeal to be advanced on behalf of appellant. Counsel reasserts his previously filed motion to withdraw in his Anders brief.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
This Court has previously determined that the constitutional protection of Anders is not applicable to retained counsel. Craddock v. State, 38 S.W.3d 886, 887 (Tex. App.- Waco 2001, order). However, once retained counsel has determined that there are no arguable issues for appeal, there are only two options available:
1. After advice to and consent of the client, withdraw the notice of appeal; or
2. Move to withdraw from representation.Id. Counsel has already attempted the first step, to no avail. Counsel has also filed a motion to withdraw from representation of appellant.
Accordingly, because the Anders procedures are not available to retained counsel, counsel's Anders brief, filed on August 23, 2023, is stricken and will not be considered by the Court. Further, no timelines associated with an Anders appeal will be enforced at this time against appellant.
Counsel's Motion to Withdraw as Counsel, filed on July 25, 2023, is GRANTED, and counsel is permitted to withdraw from the representation of appellant. Because the motion is granted, counsel must comply with Texas Rule of Appellate Procedure 6.5(c).
Further, because appellant is now without counsel for his appeal, this appeal is ABATED, and this proceeding is remanded to the trial court to determine, within 14 days from the date of this Order, whether appellant is indigent, and if so, whether to appoint counsel to represent appellant.
Supplemental clerk's and reporter's records, if any, are due 21 days from the date of this Order.
Motion granted
Appeal abated