Opinion
No. 10-11-00240-CR
08-30-2012
RUBEN HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 34941CR
ORDER
The legislature has given the trial court the responsibility and authority to appoint counsel to represent indigent defendants in criminal proceedings and to appoint co-counsel or relieve appointed counsel of his duties and replace him with other counsel upon a finding of good cause. TEX. CODE CRIM. PROC. ANN. art 26.04(j)(2) (West Supp. 2012); Noland v. State, 261 S.W.3d 926 (Tex. App.—Waco 2008, order); Enriquez v. State, 999 S.W.2d 906, 907 (Tex. App.—Waco 1999, order) (construing predecessor to current statute; see Acts 1987, 70th Leg., ch. 979 § 2, amended by Acts 2001, 77th Leg., ch. 906, § 6).
Ruben Hernandez was charged, with two other co-defendants, with capital murder. He was convicted of the offense of murder and sentenced to 50 years in prison. His two co-defendants were convicted of capital murder and sentenced to life in prison. All three have separately appealed. Vance W. Hinds was appointed to represent Hernandez at trial and on appeal.
The clerk's record in this appeal was filed on July 29, 2011. The reporter's record was filed on January 2, 2012. Hernandez's brief was originally due on February 1, 2012.
For several valid reasons, a number of motions for extension of time to file Hernandez's brief have been filed and granted. We have now received another. In the motion, filed on July 31, 2012, counsel requests another 30 days to file Hernandez's brief but notes that counsel is in the hospital and does not know when he will be discharged.
Because the record is large, we have monitored the progress of each of the three appeals in anticipation of working on them at the same time. The other two appeals are "at issue," meaning they are briefed and ready to be decided. A timely disposition of this particular appeal has become stalled.
Since appointed counsel represented Hernandez at trial, he would have a better working knowledge of the large record and the potential issues on appeal than an attorney that had no involvement in the case. Accordingly, appointment of a co-counsel to assist or be assisted by Vance W. Hinds might be the best solution from a logistical as well as economic point of view.
Accordingly, we abate this appeal to the trial court and instruct the trial court to consider, within 14 days from the date of this order, whether appointed counsel's circumstances present good cause for the appointment of co-counsel to assist or be assisted by appointed counsel for Hernandez, or whether appointed counsel's circumstances present good cause for counsel's removal as appointed counsel for Hernandez; and, if a finding of good cause is made, either appoint co-counsel or remove counsel as appointed counsel from this appeal and appoint new counsel to represent Hernandez in his appeal. Upon taking such action, the trial court must sign a written order either appointing co-counsel and designating lead counsel, or expressly removing Vance W. Hinds as appointed counsel and appointing a new attorney to represent Hernandez. The written order must also include the basis for and the finding of good cause. TEX. CODE CRIM. PROC. ANN. art 26.04(j)(2) (West Supp. 2012). Further, the order must also contain the name, mailing address, telephone number, fax number, if any, and State Bar Identification number of co-counsel or new counsel.
Alternatively, if the trial court determines there is not good cause to appoint co-counsel or to remove counsel, then the trial court must sign a written order evidencing the same and set a date certain when Hernandez's brief is due, regardless of whether this Court has yet reinstated the appeal.
Within 7 days of signing the written order, the trial court must deliver the order to the trial court clerk who must prepare a clerk's record which includes the order and file that record with the Clerk of this Court within 7 days of receiving the trial court's order.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated