Opinion
11-22-00338-CR
06-15-2023
ROBERT CHRIS BENNIE, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. See Tex. R. App. P. 47.2(b).
On Appeal from the 35th District Court Brown County, Texas Trial Court Cause No. CR28283.
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
ORDER
W. BRUCE WILLIAMS, JUSTICE
Appellant's court-appointed attorney, Judson K. Woodley, has filed a motion to withdraw as attorney of record in this appeal. Woodley previously filed a motion to extend time to file Appellant's brief. We granted Woodley's motion to extend and ordered his brief to be filed by June 16, 2023. On June 5, 2023, counsel filed this motion to withdraw based on his upcoming trial schedule. We note that the reporter's record and the clerk's record have been filed. We abate the appeal.
In this circumstance, the trial court alone has the authority to substitute counsel and permit Woodley to withdraw. See Tex. Code Crim. Proc. Ann. arts. 1.051(d), 26.04 (West Supp. 2022); Enriquez v. State, 999 S.W.2d 906, 907-08 (Tex. App.-Waco 1999, no pet.). In this regard, we note that the trial court retains its jurisdiction to appoint or substitute counsel after an appellate record has been filed. See Crim. Proc. art. 26.04(j)(2); Enriquez, 999 S.W.2d at 908.
The trial court is requested to conduct a hearing to determine whether Woodley should be allowed to withdraw as counsel for Appellant in this appeal. We note that Appellant need not appear in person at the hearing and that the trial court may permit him to appear via telephone. If the trial court determines that good cause exists and that Woodley should be allowed to withdraw as counsel, the trial court is also requested to determine the following:
1. Whether Appellant desires to prosecute this appeal;
2. Whether Appellant is indigent and is therefore entitled to new appointed counsel;
3. If Appellant is not indigent, whether Appellant has retained counsel for this appeal; and
4. If Appellant is indigent, whether Appellant desires to have counsel appointed to represent him in this appeal or whether, after being warned of the dangers and disadvantages of self-representation, Appellant competently and intelligently chooses to exercise the right to represent himself.See Tex. R. App. P. 38.8(b).
If it is determined that Appellant is indigent and is exercising his right to represent himself, the trial court must develop evidence as to whether Appellant's decision to proceed without counsel is knowingly and intelligently made. See Faretta v. California, 422 U.S. 806 (1975); Ex parte Davis, 818 S.W.2d 64 (Tex. Crim. App. 1991); Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987); Webb v. State, 533 S.W.2d 780, 783-86 (Tex. Crim. App. 1976).
If it is determined that Appellant is indigent, that he is not exercising his right of self-representation, and that Woodley should be permitted to withdraw as counsel, the trial court is directed to appoint new counsel to represent Appellant in this appeal.
The trial court is directed to enter findings of fact and conclusions of law and to make any appropriate recommendations to this court. The district clerk is directed to prepare and forward to this court a supplemental clerk's record containing the findings, recommendations, and any orders of the trial court. The court reporter is directed to prepare and forward to this court the reporter's record from the hearing. These records are due to be filed in this court on or before July 15, 2023. Appellant's brief will be due to be filed in this court within thirty days after the date this appeal is reinstated.
This appeal is abated.