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Laws v. State

Court of Appeals of Texas, First District, Houston

June 20, 2017

Randall Glen Laws
v.
The State of Texas

         209th District Court of Harris County Trial court case number: 993419

          ORDER OF ABATEMENT

          SHERRY RADACK JUDGE'S.

         The Clerk of the Court has examined the clerk's record and has found that it does not comport with the Texas Rules of Appellate Procedure, in that it does not include a copy of the trial court's certification of appellant's right of appeal. See Tex. R. App. P. 25.2(d), 34.5(a)(12). This order constitutes notice to all parties of the defective certification. See Tex. R. App. P. 37.1.

         Further, appellant was represented in the trial court by appointed counsel, Robert Wicoff, and the record contains no indication that appellant's counsel moved to withdraw or was permitted to withdraw. Nevertheless, appellant's notice of appeal was filed pro se and no attorney has appeared in this Court on appellant's behalf. Appellant has also filed a motion to appoint appellate counsel.

         Pursuant to the Code of Criminal Procedure, Robert Wicoff continues to represent appellant, because he has not been discharged by the trial court and the appeal has not been exhausted. See Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (West Supp. 2016) (requiring appointed attorney to "represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record"). Further, if Robert Wicoff was permitted to withdraw, appellant is entitled to a new court-appointed counsel, unless he, his counsel, or the attorney representing the State moved for reconsideration of the trial court's determination that he is indigent and the trial court found that a material change in his financial circumstances occurred. See id. art. 26.04(p) (West Supp. 2016); see also Tex. Code Crim. Proc. Ann. art. 1.051(d)(1) (West Supp. 2016); Ward v. State, 740 S.W.2d 794, 798 (Tex. Crim. App. 1987); Lopez v. State, 486 S.W.2d 559, 560 (Tex. Crim. App. 1972); Fowler v. State, 874 S.W.2d 112, 114 (Tex. App.-Austin 1994, order, pet. ref'd). Moreover, a "convicted person" is entitled to counsel during a proceeding under Texas Code of Criminal Procedure, Chapter 64 (Motion for Forensic DNA Testing), if the person informs the court that he wishes to submit a motion under Chapter 64, the court finds reasonable grounds for a motion to be filed, and the court determines that the person is indigent. Tex. Code Crim. Proc. Ann. art. 64.01(c) (West Supp. 2016).

         We therefore abate this appeal and remand the cause to the trial court for further proceedings. On remand, the trial court shall immediately conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's trial counsel, Robert Wicoff, shall be present. Appellant shall also be present for the hearing in person or, if appellant is incarcerated, at the trial court's discretion, appellant may participate in the hearing by use of a 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) Execute a certification of appellant's right to appeal indicating whether or not appellant has the right of appeal;
2) Determine whether appellant still wishes to pursue this appeal;
3) If appellant wishes to pursue this appeal, determine whether appellant's counsel, Robert Wicoff, intends to represent appellant on appeal or whether counsel should be permitted to withdraw;
4) If counsel is permitted to withdraw, enter a written order granting his request to withdraw and determine whether appellant is currently indigent or whether there has been a material change in his financial circumstances since the trial court found him to be indigent such that he is no longer indigent;
5) If appellant is either currently indigent or there has not been a material change in his financial circumstances, appoint substitute appellate counsel at no expense to appellant;
6) If appellant is not currently indigent and there has been a material change in his financial circumstances:
a. Enter written findings of fact establishing the material change in appellant's ...

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