Opinion
Appellate case number: 01-15-00275-CR
08-11-2017
Walter Harvey Ballard, Jr. v. The State of Texas
ORDER Trial court case number: 1390115 Trial court: 183rd District Court of Harris County
This court issued its opinion and judgment affirming appellant's conviction on July 25, 2017. On the same day, appointed defense counsel Thomas J. Lewis certified his partial compliance with Rule 48.4 by sending appellant a copy of the opinion and judgment, along with notice of his right to file a pro se motion for discretionary review under Rule 68. The certification was premature and incomplete because, being filed with the court on the same day the opinion issued, it did not include a copy of the return receipt, which is required by the rule to document actual delivery. See TEX. R. APP. P. 48.4.
It is nevertheless apparent that counsel's notice was delivered, because on August 8, 2017, the court received appellant's attached pro se motion for extension of time to file a motion for rehearing. Appellant's filing asserts that he has been advised that his appointed counsel "intends to abandon this appeal." Appellant's counsel has filed no motion to withdraw.
An appointed defense attorney shall "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." TEX. CODE CRIM. PROC. art. 26.04(j)(2). This appeal is not yet exhausted; appellant has communicated a desire to file a motion for rehearing, which is part of the appellate process. See TEX. R. APP. P. 49; cf. Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988) (appointed trial lawyer knowing of client's desire to appeal had to file a motion to withdraw to conclude representation).
Appellant is represented by counsel, and he is not entitled to hybrid representation. See Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981); see also Araiza v. State, No. 07-06-0474-CR, 2009 WL 189173, at *1 (Tex. App.—Amarillo Jan. 23, 2009, no pet.). In light of the attached letter and appellant's requests for a copy of the appellate record and "appointment of counsel to assist . . . with the preparation and filing" of motions for rehearing, we order appellant's counsel to file any appropriate motions by Monday, August 14, 2017. See Axel, 757 S.W.2d at 374; see also TEX. R. APP. P. 6.5 (motion to withdraw); TEX. R. APP. P. 10.5(b) (motion to extend time). Any motion to withdraw must address the outstanding matter of appellant's request for a copy of the appellate record.
It is so ORDERED. Judge's signature: /s/ Michael Massengale
[v] Acting individually [ ] Acting for the Court Date: August 11, 2017