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Bland v. State

Court of Appeals of Texas, First District, Houston

January 10, 2017

Neal Everett Bland
v.
The State of Texas

         178th District Court of Harris County, Trial court No.1372425

          ORDER OF ABATEMENT

          Russell Lloyd, Judge

         Appellant, Neal Everett Bland, timely filed a notice of appeal of a judgment of conviction for the offense of capital murder. The trial court found that appellant was indigent for the purpose of paying for the clerk's and reporter's records and employing counsel. On May 2, 2016, appellant filed a motion, stating that he wished to substitute retained counsel, Carvana Hicks Cloud, for his appointed counsel on appeal, Terrence Gaiser. This Court granted the motion. On November 30, 2016, Carvana Hicks Cloud filed a brief on appellant's behalf. The State has not filed its brief.

         On January 4, 2017, Carvana Hicks Cloud filed a motion to withdraw, stating that she has accepted a position with the Harris County District Attorney's Office effective January 1, 2017. However, the motion does not comply with Texas Rule of Appellate Procedure 6.5. The motion does not contain (1) a list of current deadlines in the case, (2) appellant's last known address, (3) a statement that a copy of the motion was delivered to appellant, or (4) a statement that he was notified in writing of his right to object to the motion. See Tex. R. App. P. 6.5(a). The motion also does not show that it was delivered to appellant "in person or mailed-both by certified mail and by first-class mail-to [appellant] at [his] last known address." Id. 6.5(b). The motion is denied.

         Counsel's motion does not indicate whether appellant has obtained substitute counsel. And, the record filed in this Court does not indicate that appellant has been admonished regarding the dangers and disadvantages of proceeding pro se or made an intelligent and voluntary waiver of his right to counsel on appeal. See Tex. Code Crim. Proc. Ann. art. 1.051(a), (f) (West 2016); Goffney v. State, 843 S.W.2d 583, 584-85 (Tex. Crim. App. 1992); Hawkins v. State, 613 S.W.2d 720, 722-23 (Tex. Crim. App. 1981).

         Accordingly, we abate the appeal and remand the case to the trial court for further proceedings. The trial court shall immediately conduct a hearing at which a representative of the Harris County District Attorney's Office; appellant's retained appellate counsel, Carvana Hicks Cloud; and appellant shall be present. If appellant is incarcerated, at the trial court's discretion, appellant may participate in the hearing by closed-circuit video teleconferencing system that provides for a simultaneous compressed full motion video and interactive communication of image and sound.[1]

We direct the trial court to:
(1) determine whether appellant still wishes to prosecute the appeal;
(2) determine whether appellant's retained counsel should be allowed to withdraw from representing appellant on appeal;
(3) if retained counsel is allowed to withdraw, determine whether appellant is now indigent;
(4) if appellant is indigent, appoint appellate counsel at no expense to appellant;
(5) if appellant is not indigent,
a. determine whether he has retained an attorney and, if so, obtain the name, address, and telephone number ...

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