Opinion
Appellate case numbers: 01-14-00361-CR
10-09-2014
Blake Anthony Monakino v. The State of Texas
ORDER OF ABATEMENT Trial court case numbers: 1397016 Trial court: 174th Judicial District Court of Harris County
On January 24, 2014, the trial court certified that appellant had the right to appeal in the above trial court case. On April 10, 2014, appellant was convicted after pleading guilty to aggravated assault with a deadly weapon for which he received a concurrent prison sentence of six years. However, in the judgment of conviction, the trial court also made special findings of "APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED. DEFENDANT TO PARTICIPATE IN SAFPF PROGRAM WHILE IN TDC." Thus, the judgment appears to be inconsistent with the certification. This order constitutes notice to all parties of the apparent defective certification of the right of appeal. See TEX. R. APP. P. 37.1.
Furthermore, an eligible indigent appellant has a right to appointed counsel on direct appeal from a criminal conviction. See Buntion v. Harmon, 827 S.W.2d 945, 948-49 (Tex. Crim. App. 1992); see also TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1) (West Supp. 2013). Although the trial court had found appellant indigent and granted his request for the appointment of counsel, and appointed Lisa Kay Andrews, on August 7, 2013, the clerk's record contains no post-judgment indication that Ms. Andrews moved to withdraw or was permitted to withdraw. See TEX. R. APP. P. 6.3(b)(3). Nevertheless, appellant's April 17, 2014 notice of appeal was filed pro se, with "TO BE DETERMINED" listed as appellate attorney of record by the trial clerk and, thus, no attorney has appeared in this Court on appellant's behalf. On August 25, 2014, appellant filed a pro se letter claiming that he did not waive oral argument in his appellate brief, which was filed on August 19, 2014, and repeats his request for the appointment of counsel. The State filed its appellee's brief on September 30, 2014.
Pursuant to the Code of Criminal Procedure, Lisa Kay Andrews continues to represent appellant because she has not been discharged by the trial court via written order included in the clerk's records, and the appeal has not been exhausted. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (West Supp. 2013) (requiring appointed attorney to "represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record"). In addition, even if Lisa Kay Andrews were permitted to withdraw, appellant is entitled to a new court-appointed counsel, unless his counsel, or the attorney representing the State, moved for reconsideration of the trial court's determination that he is indigent and the trial court found that a material change in his financial circumstances occurred. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); see also TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1); Ward v. State, 740 S.W.2d 794, 798 (Tex. Crim. App. 1987); Lopez v. State, 486 S.W.2d 559, 560 (Tex. Crim. App. 1972); Fowler v. State, 874 S.W.2d 112, 114 (Tex. App.—Austin 1994, order, pet. ref'd).
We therefore abate this appeal and remand the cause to the trial court for further proceedings. On remand, the trial court shall immediately conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's trial counsel, Lisa Kay Andrews, 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 use of a closed-circuit video teleconferencing system.
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.
We direct the trial court to:
1) Execute an amended certification of appellant's right to appeal indicating whether or not appellant has the right of appeal in this case;See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f); 26.04(j)(2), (p); TEX. R. APP. P. 25.2(a)(2), (d); Ward, 740 S.W.2d at 798; Lopez, 486 S.W.2d at 560; Fowler, 874 S.W.2d at 114.
2) Determine whether appellant still wishes to pursue this appeal;
3) If appellant wishes to pursue this appeal, determine whether appellant's counsel, Lisa Kay Andrews, intends to represent appellant on this appeal or whether counsel should be permitted to withdraw;
4) If counsel is permitted to withdraw, enter a written order granting her request to withdraw and determine whether appellant is currently indigent or whether there has been a material change in his financial circumstances since the trial court's August 7, 2013 order finding him to be indigent such
that he is no longer indigent;
5) If appellant is either currently indigent or there has not been a material change in his financial circumstances, appoint substitute appellate counsel at no expense to appellant;
6) If appellant is not currently indigent and there has been a material change in his financial circumstances:
a. Enter written findings of fact establishing the material change in appellant's financial circumstances;7) Make any other findings and recommendations the trial court deems appropriate; and
b. Admonish appellant regarding the dangers and disadvantages of self-representation, and
i. If appellant wishes to knowingly and intelligently waive his right to counsel, obtain a written waiver of the right to counsel; or,
ii. if appellant does not wish to proceed pro se, provide a deadline by which appellant must hire an attorney, which shall be no later than 30 days from the date of the hearing;
8) Enter written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations.
The trial court shall have a court reporter, or court recorder, record the hearing. The trial court clerk is directed to file a supplemental clerk's record containing the trial court's findings, recommendations, and orders with this Court within 30 days of the date of this order. The court reporter is directed to file the reporter's record of the hearing within 30 days of the date of this order. If the hearing is conducted by video teleconference, a certified recording of the hearing shall also be filed in this Court within 30 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 records that comply with our order are filed with the Clerk of this Court. The court coordinator of the trial court shall set a hearing date and notify the parties.
It is so ORDERED. Judge's signature: /s/ Evelyn V. Keyes
[×] Acting individually
Date: October 9, 2014