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Alvarez v. State

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
Nov 9, 2017
Appellate case number: 01-17-00711-CR (Tex. App. Nov. 9, 2017)

Opinion

Appellate case number: 01-17-00711-CR

11-09-2017

Raudel Alvarez v. The State of Texas


ORDER OF ABATEMENT Trial court case number: 1556876 Trial court: 185th District Court of Harris County

This case involves an appeal from a judgment, signed by the trial court on August 10, 2017, in which the appellant, Raudel Alvarez, was found guilty after a jury trial of the second-degree felony offense of attempted aggravated kidnapping, for which the trial court assessed his punishment at fifty-five years' confinement. The trial court certified appellant's right of appeal because this was not a plea-bargain case and appellant had a right of appeal. See TEX. R. APP. P. 25.2(a)(2)(B). Appellant's appointed trial counsel, Paul Morgan, timely filed a notice of appeal on August 17, 2017, indicating that he would continue to represent appellant on appeal. Although the reporter's record was filed on October 11, 2017, no clerk's record has been filed yet.

On November 2, 2017, appellant's appointed counsel, Paul Morgan, filed a "Motion to Withdraw[] as Counsel" in this Court. Counsel states that "[t]here has been a breakdown in the attorney-client relationship," and the indigent appellant's "interests will be best served with the appointment of new counsel."

An eligible indigent appellant has a right to have the trial court appoint counsel on direct appeal from a criminal conviction. See Buntion v. Harmon, 827 S.W.2d 945, 948-49 (Tex. Crim. App. 1992); see also TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1) (West 2016). Because no order signed by the trial court granting counsel's withdrawal was filed or attached to counsel's motion, and this appeal has not been exhausted, Paul Morgan continues as appellant's counsel until permitted to withdraw. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (West 2016) (requiring attorney to "represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record").

Accordingly, the Court sua sponte construes appellant's counsel's motion to withdraw as a motion to abate and grants it, abates the appeal, and remands the case to the trial court for further proceedings. The trial court shall immediately conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's counsel, Paul Morgan, shall be present. Appellant shall also be present for the hearing in person or, if appellant is incarcerated, at the trial court's discretion, appellant may participate in the hearing by closed-circuit video teleconferencing.

Any such teleconference must use a closed-circuit video teleconferencing system that provides for a simultaneous compressed full motion video and interactive communication of image and sound between the trial court, appellant, and any attorneys representing the State or appellant. On request of appellant, appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the attorney representing the State.

We direct the trial court to:

(1) determine whether appellant wishes to prosecute the appeal;
(2) if appellant wishes to prosecute the appeal, determine whether appellant is indigent;
(3) if appellant is indigent, determine whether good cause exists to relieve Paul Morgan of his duties as appellant's counsel;
a. if good cause exists to remove counsel, enter a written order relieving Paul Morgan of his duties as appellant's counsel, and appoint substitute appellate counsel at no expense to appellant;
b. if good cause does not exist to remove counsel, provide a final deadline by which Paul Morgan must file an appellant's brief in this Court, which shall be no more than 30 days from the date of the filing of the clerk's record;
(4) if appellant is not indigent and Paul Morgan does not intend to represent appellant on appeal,
a. determine whether appellant has retained an attorney to represent him on appeal, and, if so, obtain the name, address, and telephone number of retained counsel;
b. if appellant has not retained counsel, admonish appellant of the dangers and disadvantages of self-representation, and
i. determine whether appellant has knowingly and intelligently waived his right to counsel; and
ii. determine whether any decision by appellant to proceed pro se is in the best interest of appellant, the State, and the administration of justice;
iii. if appellant does not wish to proceed pro se, provide a deadline by which appellant must hire an attorney;
(5) make any other findings and recommendations the trial court deems
appropriate; and
(6) enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f), 26.04; TEX. R. APP. P. 38.6(a); cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g).

The trial court shall have a court reporter, or court recorder, record the hearing. The trial court clerk is directed to file a clerk's record and supplemental clerk's record including the trial court's findings, recommendations, and orders with this Court no later than 30 days from the date of this order. The court reporter is directed to file the reporter's record of the hearing no later than 30 days from the date of this order. If the hearing is conducted by video teleconference, an electronic copy of the hearing shall be filed in this Court no later than 30 days from the date of this order.

The appeal is 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 and reporter's record that comply with our order are filed with the Clerk of this Court. The court coordinator of the trial court shall set a hearing date and notify the parties.

It is so ORDERED. Judge's signature: /s/ Laura C. Higley

[v] Acting individually [ ] Acting for the Court Date: November 9, 2017


Summaries of

Alvarez v. State

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
Nov 9, 2017
Appellate case number: 01-17-00711-CR (Tex. App. Nov. 9, 2017)
Case details for

Alvarez v. State

Case Details

Full title:Raudel Alvarez v. The State of Texas

Court:COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

Date published: Nov 9, 2017

Citations

Appellate case number: 01-17-00711-CR (Tex. App. Nov. 9, 2017)