Opinion
No. 10-12-00195-CR
08-16-2012
RAED ALZREIQI, Appellant v. THE STATE OF TEXAS, Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2011-1011-C2
ABATEMENT ORDER
In this matter, appellant, Raed Alzreiqi, was convicted of engaging in organized criminal activity. See TEX. PENAL CODE ANN. §§ 47.06, 71.02 (West & Supp. 2011). Douglas Henager represented appellant in the trial court and, on May 31, 2012, filed a notice of appeal on appellant's behalf. Subsequently, on June 18, 2012, this Court received a notice of substitution of counsel filed by E. Alan Bennett. In this filing, Bennett informed the Court that he had been retained by appellant to handle this appeal and that the trial court had allowed Henager to withdraw as appellant's counsel. However, on July 31, 2012, Bennett filed a motion to withdraw as appellant's counsel due to appellant's failure to: (1) communicate with counsel; (2) pay for the clerk's and reporter's records; and (3) pay the attorney's fees required under his contract with counsel. Bennett's motion to withdraw also addressed the elements listed in Texas Rule of Appellate Procedure 6.5(a). See TEX. R. APP. P. 6.5(a).
Specifically, Texas Rule of Appellate Procedure 6.5(a) provides the following: Contents of Motion. A motion for leave to withdraw must contain the following:
(1) A list of current deadlines and settings in the case;
(2) The party's name and last known address and telephone number;
(3) A statement that a copy of the motion was delivered to the party; and
(4) A statement that the party was notified in writing of the right to object to the motion.
After reviewing the recently-filed motion, we grant Bennett's motion to withdraw and abate and remand this cause to the trial court for further proceedings. See, e.g., Wilson v. State, No. 07-11-0432-CR, 2012 Tex. App. LEXIS 3444, at **2-3 (Tex. App.—Amarillo May 1, 2012, order) (per curiam) (not designated for publication); McReynolds v. State, No. 07-10-00508-CR, 2011 Tex. App. LEXIS 1779, at **3-4 (Tex. App.—Amarillo Mar. 9, 2011, order) (per curiam) (not designated for publication). Upon remand, the trial court shall utilize whatever means necessary to determine the following: (1) whether appellant still desires to prosecute this appeal; and if so, (2) whether appellant is indigent and entitled to court-appointed counsel. See Guillory v. State, 557 S.W.2d 118, 120 (Tex. Crim. App. 1977) (citing Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); McMahon v. State, 529 S.W.2d 771 (Tex. Crim. App. 1975); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Hawkins v. State, 515 S.W.2d 275 (Tex. Crim. App. 1974); Lopez v. State, 486 S.W.2d 559 (Tex. Crim. App. 1972)). Any hearing should be held within 30 days of the date of this Order.
In Guillory v. State, the Texas Court of Criminal Appeals held that the trial court has the duty under the Texas and federal Constitutions to provide an indigent defendant with the effective assistance of counsel on appeal. 557 S.W.2d 118, 120 (Tex. Crim. App. 1977) (citing Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); McMahon v. State, 529 S.W.2d 771 (Tex. Crim. App. 1975); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Hawkins v. State, 515 S.W.2d 275 (Tex. Crim. App. 1974); Lopez v. State, 486 S.W.2d 559 (Tex. Crim. App. 1972)). The Guillory Court also stated that effective assistance of counsel on appeal cannot be afforded without filing a brief on appellant's behalf and that the trial judge has the authority to required appointed counsel to file a brief on appellant's behalf. Id. at 121.
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Should the trial court determine that the appointment of counsel is necessary and that appellant is indigent and otherwise entitled to appointed counsel, the trial court should enter an appropriate order stating the name, mailing address, telephone number, fax number, and State Bar of Texas identification number of appointed counsel. If counsel is appointed, the trial court should direct counsel to appropriately designate lead counsel in accordance with Texas Rule of Appellate Procedure 6.1(c). See TEX. R. APP. P. 6.1(c).
Irrespective of whether new counsel is appointed, the trial court is hereby ordered to: (1) make and file appropriate findings of fact, conclusions of law, and recommendations and cause them to be included in a supplemental clerk's record; and (2) cause the hearing proceedings, if any, to be transcribed and included in a supplemental reporter's record. In the absence of a request for extension of time, the trial court shall cause the supplemental clerk's and reporter's records to be filed with the Clerk of this Court within 45 days of the date of this Order.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed August 16, 2012
Do not publish