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Carnell v. State

Court of Appeals of Texas, First District

April 13, 2017

JARVIS LAMONT CARNELL, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the County Criminal Court at Law No. 10 Harris County, Texas Trial Court Case No. 1933252

          Panel consists of Justices Massengale, Brown, and Huddle.

          ORDER OF ABATEMENT

          HARVEY BROWN, JUSTICE

         Jarvis Lamont Carnell was convicted of misdemeanor assault of a person with whom he had a dating relationship.[1] On the day Carnell was convicted and sentenced, the trial court permitted Carnell's court-appointed trial counsel to withdraw. The trial court did not, however, appoint substitute counsel until over ten months later-well after the deadline for filing a motion for new trial. In his first issue, Carnell contends that he was deprived of counsel during the critical period for filing a motion for new trial. He requests that we abate this appeal so he can file an out-of-time motion for new trial. We abate the appeal.

         Background

         In December 2013, Carnell was charged with misdemeanor assault of a person with whom he had a dating relationship. A few months later, in March 2014, Carnell represented that he was indigent and requested the appointment of counsel. The trial court granted the request (without finding Carnell indigent) and appointed Mark Ash as Carnell's trial counsel.

         Over a year later, on May 28, 2015, Carnell was tried and convicted by a jury. The trial court entered judgment in accordance with the jury's verdict and sentenced Carnell to 240 days' confinement in county jail.

         Immediately after his sentencing, Carnell filed a three-in-one pleading. The pleading consisted of (1) Carnell's notice of appeal, (2) Ash's motion to withdraw, and (3) Carnell's motion to appoint appellate counsel. That same day, in a form order, the trial court found Carnell indigent for purposes of employing counsel for his appeal and paying for the record, granted Ash's motion to withdraw, and granted Carnell's motion to appoint appellate counsel. The trial court did not, however, actually appoint a new attorney to represent Carnell on appeal.

         After the trial court granted Ash's motion to withdraw, the trial court and this Court continued to send Ash notifications and identify him as Carnell's attorney of record. For example, in a letter dated June 3, 2015, the district clerk identified Ash as Carnell's "appeal attorney of record" and informed Ash of several "appeal updates." In a letter dated June 8, 2015, our clerk notified Ash and the prosecutor of the deadline for filing the clerk's record in Carnell's appeal. And in a July 14, 2015 postcard notice, our clerk informed Ash and the prosecutor that the clerk's record had been filed.

         In response to the notifications identifying him as Carnell's attorney on appeal, on July 22, 2015, Ash filed a renewed motion to withdraw. In the motion, Ash explained that, although the trial court had granted his original motion to withdraw, the clerk's record still identified him as Carnell's counsel on appeal. Ash requested that the trial court permit him to withdraw completely and appoint new counsel to represent Carnell on appeal. That same day, the trial court granted trial counsel's renewed motion to withdraw. It did not, however, appoint new counsel to represent Carnell on appeal.

         On March 30, 2016-over ten months after the trial court granted Ash's original motion to withdraw and nearly eight months after the trial court granted Ash's renewed motion to withdraw-the trial court appointed a public defender to represent Carnell on appeal.

         Deprivation of Counsel

         In his first issue, Carnell argues that he was deprived of counsel during the period for filing a motion for new trial because the trial court permitted Ash to withdraw on the day the period began but did not appoint substitute counsel until months after the period ended.

         The State responds that Carnell was not deprived of counsel during this period because Ash continued to represent Carnell after the trial court had granted his motion to withdraw. The State further responds that, assuming Carnell was deprived of counsel, the error was harmless because Carnell has failed to allege a ...


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