Opinion
NUMBER 13-17-00596-CR
01-03-2019
RAMON JOEL PENA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court of Nueces County, Texas.
SUPPLEMENTAL ORDER OF ABATEMENT
Before Chief Justice Contreras and Justices Benavides and Longoria
Order Per Curiam
Appellant's brief was originally due on March 7, 2018. On May 14, 2018, this Court granted appellant's second motion for extension of time and directed appellant to file the brief on or before June 7, 2018. Counsel failed to file a brief and on July 26, 2018, this Court abated the appeal and remanded the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure. On December 18, 2018, appellant's counsel filed a motion to withdraw as counsel on grounds counsel is overwhelmed with work and has been unable to complete the brief.
Adequate reason for the discharge of counsel and appointment of new counsel rests within the sound discretion of the trial court. Carroll v. State, 176 S.W.3d 249, 255 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd). In those circumstances where the appointment of substitute counsel may be necessary, an appellate court, when faced with a motion to withdraw, should abate the proceeding to the trial court for determination of this issue.
Accordingly, the appeal remains abated and the trial court is directed to determine whether appellant's court-appointed attorney should remain as appellant's counsel; and, if not, whether appellant is entitled to new appointed counsel. If the trial court determines that there is no reason to discharge appellant's current appointed attorney and appoint substitute counsel, the court shall enter an order to that effect. If the trial court determines that new counsel should be appointed, the name, address, email address, telephone number, and state bar number of newly appointed counsel shall be included in the order appointing counsel. The trial court shall further cause its order to be included in a supplemental clerk's record to be filed with the Clerk of this Court on or before the expiration of thirty days from the date of this order.
It is so ordered.
Per Curiam Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 3rd day of January, 2019.