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Hernandez v. State

Court of Appeals of Texas, Fourth District, San Antonio

January 16, 2014

Jose HERNANDEZ, Appellant
v.
The STATE of Texas, Appellee

From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2012CR6911 Honorable Philip A. Kazen, Jr., Judge Presiding

ORDER

Patricia O. Alvarez, Justice

Appellant's counsel Victor M. Valdés has filed a motion to withdraw as Appellant's attorney. However, the motion does not contain a statement that Appellant was notified in writing of Appellant's right to object to counsel's motion to withdraw. See Tex. R. App. P. 6.5(a), (b); Rivera v. State, 130 S.W.3d 454, 458 (Tex. App.—Corpus Christi 2004, no pet.).

Counsel's motion is DENIED without prejudice.

Nevertheless, we ABATE this appeal to the trial court. See Duncan v. State, 653 S.W.2d 38, 40 (Tex. Crim. App. 1983). We ORDER the trial court to conduct a hearing within TWENTY DAYS of the date of this order, and address the following questions:

(1) Does Appellant desire to prosecute his appeal?
(2) Has Appellant been notified of Attorney Victor M. Valdés's motion to withdraw and Appellant's right to object to the motion? See Tex. R. App. P. 6.5(a)(4).
(3) Is Appellant indigent?

The trial court may, in its discretion, receive evidence on the questions by sworn affidavit from Appellant. If the trial court grants Attorney Valdés's motion to withdraw, Appellant desires appointed counsel to prosecute his appeal, and Appellant is indigent, the trial court shall appoint new counsel. See Tex. Code Crim. Proc. Ann. art. 26.04 (West 2013).

We ORDER the trial court clerk to file a supplemental clerk's record in this court, not later than THIRTY DAYS from the date of this order. The supplemental record shall include (1) copies of any documentary evidence admitted, (2) the trial court's order granting or denying the motion to withdraw, ...


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