Opinion
No. 10-18-00053-CR
05-02-2018
MELANIE BROOKE HOLLOWAY, Appellant v. THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas
Trial Court No. 2016-1548-C1
ABATEMENT ORDER
On February 13, 2018, Appellant filed a pro se notice of appeal from the trial court's judgment of conviction and sentence in the underlying case. The district clerk subsequently filed the clerk's record in this Court. The clerk's record indicates that Appellant's retained trial counsel filed a motion to withdraw as counsel of record on February 13, 2018. The motion further requested "that the court appoint an attorney [for Appellant] that specializes in appellate law." The trial court thereafter signed an order granting the motion to withdraw, but the order said nothing about appellate counsel for Appellant.
On March 19, 2018, the Court then received a request for extension of time to prepare and file the reporter's record from the official court reporter. The document provided, "I understand from court staff that the defendant is being bench warranted back to this court to secure paperwork from her for appointment by the Court of appellate counsel." This Court, however, has received nothing indicating whether Appellant was found to be indigent and appointed appellate counsel to represent her in this appeal.
An indigent criminal defendant has a constitutional right to appointed counsel in a first appeal of right. Scott v. State, 80 S.W.3d 184, 197 (Tex. App.—Waco 2002, pet. ref'd) (citing Douglas v. California, 372 U.S. 353, 356-57, 83 S.Ct. 814, 816-17, 9 L.Ed.2d 811 (1963)). The appointment of counsel for an indigent defendant in a criminal case is under the sole authority of the trial court. See Enriquez v. State, 999 S.W.2d 906, 907-08 (Tex. App.—Waco 1999, order); TEX. CODE CRIM. PROC. ANN. art. 26.04(a) (West Supp. 2017); cf. Meza v. State, 206 S.W.3d 684, 688 (Tex. Crim. App. 2006). Accordingly, the Court abates this cause to the trial court with instructions to determine whether Appellant is indigent and entitled to appointed counsel.
Within fourteen (14) days after the date of this Order, the trial court shall conduct a hearing, if necessary, and make the above determination. The trial court clerk and court reporter shall file any supplemental records within twenty-eight (28) days after the date of this Order.
PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Appeal abated
Order issued and filed May 2, 2018