Opinion
01-24-00004-CR
03-14-2024
Luis Maldonado Guerrero v. The State of Texas
Trial court: 21st District Court of Washington County Trial court case number: 18693
ORDER
Terry Adams Judge
The complete record has been filed in the above-referenced appeal. On March 11, 2024, attorney Randy Schaffer filed a motion to substitute, stating that appellant sought to substitute Randy Schaffer for Chris Dillon as counsel of record on appeal. However, the motion does not comply with Texas Rule of Appellate Procedure 6.5. The motion does not show that it was delivered to appellant "in person or mailed-both by certified mail and by first-class mail-to [appellant] at [his] last known address." Tex.R.App.P. 6.5(b). The motion also does not indicate that appellant consents to the substitution of counsel. The motion to substitute is denied.
The trial court is responsible for appointing counsel to represent indigent defendants and possesses the authority to relieve or replace appointed counsel on a finding of good cause. Tex. Code Crim. Proc. art. 1.051(d), 26.04(j)(2). Notwithstanding the motion to substitute, Chris Dillon remains appellant's counsel on appeal "until charges are dismissed, the defendant is acquitted, appeals are exhausted, or [he] is relieved of his duties by the court or replaced by other counsel after a finding of good cause is entered on the record." Tex. Code Crim. Proc. art. 26.04(j)(2). Accordingly, we abate the appeal and remand the case to the trial court for further proceedings. The trial court shall immediately conduct a hearing at which a representative of the Washington County District Attorney's Office and appellant's counsel, Chris Dillon, 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.
The trial court is directed to:
(1) determine whether appellant wishes to prosecute the appeal;
(2) if appellant does wish to prosecute the appeal, determine whether appellant's appointed counsel should be allowed to withdraw from representing appellant on appeal or whether good cause exists to relieve Chris Dillon of his duties as appellant's counsel;
(3) if the motion should be granted or good cause exists, enter a written order granting the motion or relieving Chris Dillon of his duties as appellant's counsel, including in the order the basis for and finding of good cause.
(4) if appointed counsel is allowed to withdraw, determine whether appellant is indigent;
(5) if appellant is indigent, appoint appellate counsel at no expense to appellant;
(6) if appellant is not indigent,
a. determine whether he has retained an attorney and, if so, obtain the name, address, and telephone number of retained counsel;
b. if appellant has not retained counsel, admonish appellant of the dangers of self-representation, and
i. determine whether appellant is knowingly and intelligently waiving his right to counsel, or
ii. if appellant does not wish to proceed pro se, provide a deadline by which he must hire an attorney;
(7) if the motion should not be granted and good cause does not exist, set a date certain when appellant's brief is due, regardless of whether this Court has yet reinstated the appeal and no later than 30 days from the date of the hearing;
(8) make any other findings and recommendations the trial court deems appropriate; and
(9) enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.
See Tex. Code Crim. Proc. Ann. art. 1.051(a), (c), (d)(1), 26.04(j)(2), (p); Ward v. State, 740 S.W.2d 794, 798 (Tex. Crim. App. 1987).
The trial court shall have a court reporter record the hearing and file the reporter's record with this Court within 30 days of the date of this order. The trial court clerk is directed to file a supplemental clerk's record containing the trial court's findings and recommendations with this Court within 30 days of the date of this order. If the hearing is conducted by video teleconference, a certified video recording of the hearing shall also be filed in this Court within 25 days of the date of this order.
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 the reporter's record of the hearing are filed in this Court. The court coordinator of the trial court shall set a hearing date and notify the parties and the Clerk of this Court of such date.
It is so ORDERED.