Opinion
Appellate case number: 01-17-00526-CR
03-15-2018
Deniven Dupree Bell v. The State of Texas
ORDER Trial court case number: A-16-0822-SB Trial court: 51st District Court of Tom Green County, Texas
A jury convicted appellant of the felony offense of retaliation and assessed his punishment at confinement for four and one-half years. Appellant timely filed a notice of appeal. His court-appointed counsel has filed a motion to withdraw along with a brief concluding that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant, acting pro se, has filed a motion appointment of a new attorney on appeal.
Appellant's appointed counsel remains as appellant's counsel until the appeal is exhausted or counsel is permitted to withdraw. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j) (West Supp. 2017); Buntion v. Harmon, 827 S.W.2d 945, 949 (Tex. Crim. App. 1992) (stating indigent defendant does not have right to counsel of his own choosing); see also Stelbacky v. State, 22 S.W.3d 583, 586 (Tex. App.—Amarillo 2000, no pet.) (explaining purpose of pro se response to counsel's Anders brief is to raise points indigent appellant chooses to bring to court's attention and assist court in determining whether there are any matters arguable on merits). Accordingly we deny appellant's motion requesting appointment of a new attorney to represent appellant on appeal.
Appellant also has requested from this Court "a transcript of the 16 minute tape the district attorney provided [trial counsel]," a transcript of "Texas Ranger John Nick Hannah interrogating" appellant, and "all documents" appellant "sent to the U.S.D.O.J." On November 15, 2017, the trial court clerk notified the Clerk of this Court that she had sent appellant a "copy of the appellate record, supplemental appellate record, and reporter's record." Accordingly, this Court's records show that appellant has been provided a copy of the appellate record for use in preparing a response to appointed counsel's brief. See Kelly v. State, 436 S.W.3d 313, 321 (Tex. Crim. App. 2014). That record, however, does not include "a transcript of the 16 minute tape the district attorney provided [trial counsel]," a transcript of "Texas Ranger John Nick Hannah interrogating" appellant, or "all documents . . . [appellant] sent to the U.S.D.O.J." Accordingly, we dismiss as moot appellant's request for these documents.
The State offered, and the trial court admitted with no objection, an audio recording of a sixteen-minute telephone conversation between appellant and Gregory Lucas, "a captain with the Criminal Investigation Division of the Office of the Attorney General." With the parties' agreement, the court reporter did not "take down the audio."
Appellant's response to his appointed counsel's brief shall be filed no later than 30 days from the date of this order.
It is so ORDERED. Judge's signature: /s/ Terry Jennings
[v] Acting individually [ ] Acting for the Court Date: March 15, 2018