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Bane v. State

Court of Appeals Fifth District of Texas at Dallas
Nov 3, 2017
No. 05-17-00821-CR (Tex. App. Nov. 3, 2017)

Opinion

No. 05-17-00821-CR

11-03-2017

GORDON C. BANE, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 297th District Court Tarrant County, Texas
Trial Court Cause No. 1464818D

ORDER

Before the Court is the October 24, 2017 motion to withdraw, filed by retained appellate counsel Timothy Mendolia and M&P Law Offices. In the motion, counsel asks this Court to allow them to withdraw because appellant has not complied with the terms of the employment agreement, specifically appellant has failed to pay his attorney fees as contracted. The motion states it was hand delivered to appellant at his last known address.

We GRANT the motion and DIRECT the Clerk to remove Timothy Mendolia and M&P Law Offices as counsel of record for appellant.

Because criminal defendants have a constitutional right to effective assistance of counsel on appeal, whether counsel is appointed or retained, we ORDER the trial court to conduct a hearing to determine the following.

• The trial court shall first determine whether appellant desires to pursue the appeals. If the trial court determines appellant no longer desires to pursue the appeals, the trial court shall make a finding to that effect, and no further findings are necessary.

• If the trial court determines that appellant does wish to pursue the appeals, the trial court shall next determine whether appellant desires to be represented by counsel.

• If the trial court determines appellant desires to be represented by counsel, the trial court shall determine whether appellant is indigent and entitled to court-appointed counsel. If appellant is indigent, we ORDER the trial court to appoint counsel to represent him. If appellant is not indigent, the trial court shall determine whether appellant has retained new counsel and shall provide the name, State Bar number, and contact information for new counsel.

• If the trial court determines that appellant does not wish to be represented by counsel, the trial court shall advise appellant of the dangers and disadvantages of self-representation. See Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987). The trial court shall further advise appellant that he does not have the right to hybrid representation.

• If the trial court determines appellant's waiver of counsel is knowing and voluntary, it shall provide appellant with a statement in substantially the same form as provided in article 1.051(g) of the Texas Code of Criminal Procedure and have appellant sign the form. See TEX. CODE CRIM. PROC. ANN. art. 1.051(g) (West 2016).

We ORDER the trial court to transmit a record containing the written findings of fact, any supporting documentation, and any orders to this Court within THIRTY DAYS of the date of this order. If the trial court determines appellant desires to proceed pro se and that his waiver of counsel is knowing and voluntary, the supplemental record shall contain appellant's signed, written waiver in substantially the same form as provided by article 1.051(g) of the code of criminal procedure.

We DIRECT the Clerk to send copies of this order to Judge Everett Young, Presiding Judge, sitting for Judge David Hagerman, 297th Judicial District Court; to Timothy Mendolia and M&P Law Offices; to Gordon C. Bane, SID# 04120203, TDCJ# 02145207, at his last known address: 350 W. Belknap St., Fort Worth, TX 76102 or Tarrant County Jail, Green Bay Facility, 2500 Urban Drive, Fort Worth, TX 76106; and the Tarrant County District Attorney's Office.

This appeal is ABATED to allow the trial court to comply with this order. It will be reinstated thirty days from the date of this order or when the supplemental record is received, whichever is earlier.

/s/ ADA BROWN

JUSTICE


Summaries of

Bane v. State

Court of Appeals Fifth District of Texas at Dallas
Nov 3, 2017
No. 05-17-00821-CR (Tex. App. Nov. 3, 2017)
Case details for

Bane v. State

Case Details

Full title:GORDON C. BANE, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Nov 3, 2017

Citations

No. 05-17-00821-CR (Tex. App. Nov. 3, 2017)