Opinion
13-24-00288-CR
09-12-2024
JOHN CURTIS HARTLEY, Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. TEX. R. APP. P. 47.2(B).
ON APPEAL FROM THE COUNTY COURT OF WHARTON COUNTY, TEXAS
Before Justices Longoria, Tijerina, and Pena
SUPPLEMENTAL ORDER OF ABATEMENT
PER CURIAM
This cause is before the Court on appellant's counsel's motion to withdraw. Also before the Court is a conflict in the record regarding the trial court's certification of appellant's right to appeal. We carry appellant's counsel's motion to withdraw and issue this supplemental abatement order addressing both the motion and the trial court's certification of right to appeal.
Upon review of the trial court's findings, issued on August 6, 2024, it appears the trial court's certification of appellant's right of appeal is incorrect or otherwise defective. See Dears v. State, 154 S.W.3d 610, 61415 (Tex. Crim. App. 2005); see Tex.R.App.P. 34.5(c); 37.1. A defective certification includes a certification that is correct in form, but, when compared with the record before the court, proves to be inaccurate. Dears, 154 S.W.3d at 614. The trial court found that appellant does have the right to appeal, and that the certification should be amended; however, we have not received an amended trial court certification of defendant's right to appeal.
Furthermore, appointment of new counsel rests within the sound discretion of the trial court. Carroll v. State, 176 S.W.3d 249, 255 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd). In those circumstances where the appointment of counsel may be necessary, an appellate court should abate the proceeding to the trial court for determination of this issue. Accordingly, we now continue the abatement of this matter and remand the cause to the trial court for further proceedings consistent with this order.
Upon continued remand, the trial court shall now determine whether appellant is entitled to court-appointed counsel. If the trial court determines that counsel should be appointed, the name, address, email address, telephone number, and state bar number of newly appointed counsel shall be included in the order appointing counsel. If the trial court determines appellant has abandoned this appeal and/or is not entitled to courtappointment counsel, it shall issue such findings. The trial court shall further cause its findings, an amended trial court's certification of right to appeal, and/or any other necessary order to be included in a supplemental clerk's record to be filed with the clerk of the court on or before the expiration of thirty days from the date of this order.