Opinion
No. 04-16-00187-CR
07-22-2016
Wesley LOWMAN, Appellant v. The STATE of Texas, Appellee
From the County Court, Atascosa County, Texas
Trial Court No. 29786
Honorable Lynn Ellison, Judge Presiding
ORDER
The trial court imposed sentence in this case on March 31, 2016. At trial, appellant was represented by appointed counsel, David B. Wilkerson. After sentencing, Mr. Wilkerson filed a notice of appeal on behalf of appellant. The clerk's record was filed in this court on June 8, 2016. When no reporter's record was filed, this court notified the court reporter, Cynthia Spicer-Lewis, that the record was late. In response, the court reporter filed a notification of late record, advising that appellant's counsel, Mr. Wilkerson, had advised her "that he did not want the record prepared." After receiving the reporter's notification, this court attempted to contact Mr. Wilkerson. Finally, on July 22, 2016, a clerk of this court was able to speak to Mr. Wilkerson by telephone. Mr. Wilkerson advised that although he filed the notice of appeal, he did not intend to act as appellate counsel for appellant. It appears that Mr. Wilkerson advised the reporter that he did not want the reporter's record prepared and filed in this court because he did not believe he was counsel for purposes of appeal. This is incorrect.
The law is clear in this State that "appointed counsel remains as the defendant's counsel for all purposes until expressly permitted to withdraw, even if the appointment is for trial only." Hanson v. State, 11 S.W.3d 285, 288 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd) (citing Ward v. State, 740 S.W.2d 794, 796 (Tex. Crim. App. 1987)). The record does not reflect that Mr. Wilkerson filed a motion to withdraw as counsel for appellant, nor is there any order removing Mr. Wilkerson as counsel and appointing new counsel for purposes of appeal. According, we find that Mr. Wilkerson is counsel for appellant for purposes of appeal.
We therefore ORDER Mr. Wilkerson, who is appellate counsel for appellant, to take action with respect to his representation of appellant, including requesting a copy of the reporter's record in writing from the court reporter on or before August 1, 2016 and providing this court with written notice of said request. We ORDER the court reporter to file the reporter's record in this court on or before August 31, 2016. Appellant's brief will be due thirty days after the reporter's record is filed. If Mr. Wilkerson wishes to withdraw in this matter, he should file a motion to withdraw in the trial court. If the trial court permits Mr. Wilkerson to withdraw, the trial court must appoint new appellate counsel for appellant. Whether he withdraws or not, Mr. Wilkerson is still obligated to request a copy of the reporter's record as set forth above. If the trial court allows Mr. Wilkerson to withdraw, it should prepare a written order to that effect, as well as an order appointing new counsel. We ORDER the trial court clerk to file a supplemental clerk's record including all additional filings — including motion and order — related to this matter.
We order the clerk of this court to serve a copy of this order on the trial court, all counsel, the court reporter, and the trial court clerk.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 22nd day of July, 2016.
/s/_________
Keith E. Hottle
Clerk of Court