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Alvarez v. State

Court of Appeals of Texas, First District, Houston

November 9, 2017

Raudel Alvarez
v.
The State of Texas

         185th District Court of Harris County Trial court case number: 1556876

          ORDER OF ABATEMENT

          LAURA C. HIGLEY JUDGE'S

         This case involves an appeal from a judgment, signed by the trial court on August 10, 2017, in which the appellant, Raudel Alvarez, was found guilty after a jury trial of the second-degree felony offense of attempted aggravated kidnapping, for which the trial court assessed his punishment at fifty-five years' confinement. The trial court certified appellant's right of appeal because this was not a plea-bargain case and appellant had a right of appeal. See Tex. R. App. P. 25.2(a)(2)(B). Appellant's appointed trial counsel, Paul Morgan, timely filed a notice of appeal on August 17, 2017, indicating that he would continue to represent appellant on appeal. Although the reporter's record was filed on October 11, 2017, no clerk's record has been filed yet.

         On November 2, 2017, appellant's appointed counsel, Paul Morgan, filed a "Motion to Withdraw[] as Counsel" in this Court. Counsel states that "[t]here has been a breakdown in the attorney-client relationship, " and the indigent appellant's "interests will be best served with the appointment of new counsel."

         An eligible indigent appellant has a right to have the trial court appoint counsel on direct appeal from a criminal conviction. See Buntion v. Harmon, 827 S.W.2d 945, 948-49 (Tex. Crim. App. 1992); see also Tex. Code Crim. Proc. Ann. art. 1.051(d)(1) (West 2016). Because no order signed by the trial court granting counsel's withdrawal was filed or attached to counsel's motion, and this appeal has not been exhausted, Paul Morgan continues as appellant's counsel until permitted to withdraw. See Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (West 2016) (requiring 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").

         Accordingly, the Court sua sponte construes appellant's counsel's motion to withdraw as a motion to abate and grants it, abates the appeal, and remands 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 and appellant's counsel, Paul Morgan, 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 closed-circuit video teleconferencing.[1]

         We direct the trial court to:

(1) determine whether appellant wishes to prosecute the appeal;
(2) if appellant wishes to prosecute the appeal, determine whether appellant is indigent;
(3) if appellant is indigent, determine whether good cause exists to relieve Paul Morgan of his duties as appellant's counsel;
a. if good cause exists to remove counsel, enter a written order relieving Paul Morgan of his duties as appellant's counsel, and appoint substitute appellate counsel at no expense to appellant;
b. if good cause does not exist to remove counsel, provide a final deadline by which Paul Morgan must file an appellant's brief in this Court, which shall be no more than 30 days from the date of the filing of the clerk's record;
(4) if appellant is not indigent and Paul Morgan does not intend to represent appellant on appeal,
a. determine whether appellant has retained an attorney to represent him on appeal, and, if so, obtain the name, address, and ...

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