Court of Appeals of Texas, Sixth District, Texarkana
Appeal from the 196th District Court Hunt County, Texas Trial
Court No. 30, 511
Morriss, C.J., Moseley and Burgess, JJ.
Hunt County jury returned a guilty verdict against Jamel
McLelland Fowler for burglary of a building, Fowler filed a
motion for new trial, and the trial court granted that motion
and entered a judgment of acquittal. The State appealed. On
March 14, 2017, this Court issued its opinion and judgment
affirming the trial court's acquittal of Fowler, and the
State filed a petition for discretionary review (PDR) with
the Texas Court of Criminal Appeals on April 3, 2017. The
Court of Criminal Appeals reversed our opinion on June 28,
2017. The mandate finalizing the Court of Criminal
Appeals' decision was issued on July 24, 2017. After a
thorough review of the appellate record filed under this
cause number, and even though Fowler was clearly represented
by counsel at the original appeal in this case, we find no
record of an official appointment of counsel to represent
Fowler on appeal in this case. Accordingly, it appears that
appointment of counsel to represent Fowler at this stage is
necessary. A brief recitation of the procedural history of
this case is necessary.
Fowler's conviction in a companion case filed under our
cause number 06-16-00038-CR, the trial court found Fowler to
be indigent and appointed Jessica Edwards to represent Fowler
on appeal in that case. There is no such order in the record
in the present case. The reason for this appears to be
because Fowler was acquitted in the present case and,
therefore, had nothing to appeal from the judgment in this
case. Yet, even though the order of appointment in cause
number 06-16-00038-CR did not specify that Edwards'
appointment included the original appeal in the present case,
Edwards represented Fowler in both cause number
06-16-00038-CR and this case.
Therefore, regardless of whether the original appointment
order included this case or not, Fowler was, at a minimum,
de facto represented by counsel on his initial
Edwards' de facto representation ended when our
original opinion in this case was entered. Article 1.051 of
the Texas Code of Criminal Procedure provides:
An eligible indigent defendant is entitled to have the trial
court appoint an attorney to represent him in the following
appellate and postconviction habeas corpus matters: (1) an
appeal to a court of appeals; (2) an appeal to the Court of
Criminal Appeals . . . if a petition for discretionary review
has been granted; . . . and (4) any other appellate
proceeding if the court concludes that the interests of
justice require representation.
Tex. Code Crim. Proc. Ann. art. 1.051(d) (West Supp. 2016).
Accordingly, once we issued our opinion, Fowler had no right
to further representation on appeal until the Court of
Criminal Appeals granted the State's PDR. See
Blankenship v. Johnson, 118 F.3d 312, 317 (5th Cir.
1997) (acknowledging "the well-settled rule that a
criminal defendant does not have a right to counsel for the
preparation of petitions for discretionary review, " but
holding that due process is violated "if the state [is]
allowed to challenge the defendant's successful direct
appeal without providing him with counsel after a
discretionary appeal is granted to the state").
However, the Court of Criminal Appeals has held that when a
case is reversed on discretionary review and remanded to the
court of appeals for reconsideration, it effectively
"reinstate[s] the status of said cause to the first
level of appeal, a stage of proceedings in which applicant
had the right to appointment of counsel if he was indigent at
the time of the remand." Ex parte
Lopez, 763 S.W.2d 427, 429 (Tex. Crim. App. 1989).
Therefore, Fowler is clearly entitled to the appointment of
counsel at this stage of the proceeding. Yet, the original
appointment order does not appear to include this case, and
we are unable to find any order by the Court of Criminal
Appeals appointing Fowler counsel or abating the case and
remanding the case to the trial court for appointment of
counsel after granting the State's PDR.
because the original appointment order did not include this
case, because counsel's de facto representation
of Fowler ended with the issuance of our opinion in the
present case, and because there is no indication that the
Court of Criminal Appeals appointed counsel after granting
the State's PDR, it appears that Fowler is now
unrepresented upon remand. In light of this fact, on our own
motion, and in the interests of justice, we abate this appeal
to the trial court with directions to officially appoint
counsel to represent Fowler before this Court through the
remainder of this appeal.
trial court need not hold a hearing to accomplish this
appointment, though it is free to do so if necessary. A
written memorialization of the trial court's appointment
shall be entered into the record of the case and presented to
this Court in the form of a supplemental clerk's record
within five days of the date of this order, or on or before
August 7, 2017. Upon receipt of the supplemental clerk's
record identifying appointed counsel, this abatement will
terminate. At that time, we will communicate with the
attorneys in this matter regarding the briefing, if any, that
we may require on remand.