Opinion
04-24-00375-CR
11-05-2024
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. On October 4, 2024, we granted the motion to withdraw and ordered the appeal abated to the trial court 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).
On November 4, 2024, we received the trial court's findings of fact and conclusions of law. The trial court made the following findings:
1. The Trial Court scheduled an abatement hearing on this appeal for November 1, 2024 at 1:30 p.m.
2. The Appellant was given an option to appear in person or via zoom.
3. The Court's Coordinator, Mr. Alejandro Chavez, was sworn in and testified as to the efforts undertaken to reach the Appellant.
4. Mr. Chavez attempted to reach the Appellant multiple times via two separate phone numbers obtained through the Odyssey system as well as Mr. Nichol's counsel.
5. On October 27, 2024 notices were hand-delivered to mailboxes listed at both addresses obtained for Mr. Nichols via court records.
6. The Court verified that Appellant, Alan Ray Nichol, is not presently incarcerated in the Bexar County Jail.
7. The Court finds that the Appellant did not appear as ordered via zoom or in person as of 2:00 p.m. on November 1, 2024.
8. Mr. Nichol has made no effort to contact the court, indicating a lack of interest in pursuing this appeal.
9. The Court was unable to review Appellant's indigency status due to a lack of any response to the court's phone calls or notice(s) of setting.
Based on the foregoing findings, the trial court concluded appellant has abandoned his appeal.
Based on the trial court's findings and conclusions, this case is now at-issue and will be set for submission.