Opinion
04-24-00375-CR
10-04-2024
Alan Ray NICHOL, Appellant v. The STATE of Texas, Appellee
From the County Court at Law No. 15, Bexar County, Texas Trial Court No. 695248 Honorable Melissa Vara, Judge Presiding
ORDER
Luz Elena D. Chapa, Justice
On September 30, 2024, appellant's appointed attorney, Sean Keane-Dawes, filed a motion to withdraw as appellate counsel. He states he can no longer represent appellant because currently works for Texas RioGrande Public Defender and is prohibited from accepting outside work. He further states appellant consents to the withdrawal.
We grant the motion to withdraw. Appellant, whose brief is currently past due, is now without representation. We therefore order this appeal abated to the trial court. See Duncan v. State, 653 S.W.2d 38, 40 (Tex. Crim. App. 1983) (holding appellate courts may abate appeals so trial court can assure appellant has effective assistance of counsel). We remand the cause to the trial court for it to make appropriate findings and rule on these issues:
1. Does appellant desire to prosecute his appeal?
2. Is appellant indigent? If appellant is indigent and desires to prosecute his appeal, the trial court should take steps necessary to ensure effective assistance of counsel, including the appointment of new counsel, if necessary. If appellant desires to proceed pro se, the trial court is directed to determine appellant's ability and capacity to knowingly and intelligently waive his right to counsel. See Ex parte Davis, 818 S.W.2d 64, 66-68 (Tex. Crim. App. 1991); Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987). The trial should consider whether allowing appellant to proceed pro se on appeal is in the best interests of the appellant and the government. Martinez v. California, 528 U.S. 152, 120 S.Ct. 684, 691-92 145 L.Ed.2d 597 (2000).
We further order the trial court to file in this court by November 4, 2024: (1) a reporter's record of the hearing, and (2) a supplemental clerk's record containing the trial court's written findings of fact and conclusions of law on the above issues. All other appellate deadlines are suspended until further notice from this court.