Opinion
Appellate case number: 01-16-00119-CR
08-30-2016
Derek Thomas Baldit v. The State of Texas
ORDER OF ABATEMENT Trial court case number: 2006621 Trial court: County Criminal Court at Law No. 7 of Harris County
This case involves an appeal from a judgment, signed by the trial court on January 12, 2016, in which the appellant, Derek Thomas Baldit, was found guilty of the class A misdemeanor offense of assault—family member after a jury trial. The trial court assessed appellant's punishment at 180 days' confinement in county jail. The trial court also certified appellant's right of appeal because this was not a plea-bargain case and appellant has a right of appeal. See TEX. R. APP. P. 25.2(a)(2)(B). Appellant, through his trial counsel who was granted permission to withdraw by the trial court, timely filed a notice of appeal on February 3, 2016. See id. 26.2(a)(1). On March 17, 2016, Rick Oliver filed a notice of appearance as retained counsel for appellant in this Court.
On August 24, 2016, retained counsel filed a motion to withdraw as counsel because he has determined that this appeal is frivolous, but he did not file a brief, which is not required. "Only appointed counsel are required to file an Anders brief. Retained counsel are not required to do so." Knotts v. State, 31 S.W.3d 821, 822 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (citation omitted); see also Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967).
However, if retained counsel does not wish to continue to represent an appellant, counsel must file a motion to withdraw with the trial court and be granted withdrawal. See Whitehead v. State, 130 S.W.3d 866, 879 (Tex. Crim. App. 2004) (stating that Texas Rule of Appellate Procedure 6.4(b) "specifically bars appointed counsel in a criminal case from filing a 'nonrepresentation' notice but does not mention retained counsel," and thus, "[r]etained counsel must file a motion to withdraw") (emphasis in original); Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003). Because no order signed by the trial court granting counsel's withdrawal was filed with the clerk's record or attached to counsel's motion to withdraw, and this appeal has not been exhausted, Rick Oliver continues as appellant's counsel until permitted to withdraw. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (West Supp. 2015) (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 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, Rick Oliver, 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 Rick Oliver of his duties as appellant's counsel;
a. if good cause exists to remove counsel, enter a written order relieving Rick Oliver 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 Rick Oliver must file an appellant's brief in this Court, which shall be no more than 30 days from the date of the hearing;
(4) if appellant is not indigent and Rick Oliver does not intend to continue to represent appellant on appeal,
a. if good cause exists to remove counsel, enter a written order relieving Rick Oliver of his duties as appellant's counsel;
b. 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; or
c. 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; or
iii. if appellant does not wish to proceed pro se, provide a deadline by which appellant must hire an attorney, which shall be no more than 30 days from the date of the hearing;
(5) make any other findings and recommendations the trial court deems appropriate; andSee TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f), 26.04; TEX. R. APP. P. 38.6(a); Whitehead, 130 S.W.3d at 879; Jones, 98 S.W.3d at 703; Goffney, 843 S.W.2d at 584-85; Hawkins, 613 S.W.2d at 722-23; cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g).
(6) enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.
The trial court shall have a court reporter, or court recorder, record the hearing. The trial court clerk is directed to file a supplemental clerk's record containing 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 15 days from the date of the hearing. If the hearing is conducted by video teleconference, an electronic copy of the hearing shall be filed in this Court no later than 15 days from the date of the hearing.
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/ Evelyn V. Keyes
[×] Acting individually Date: August 30, 2016