Opinion
NO. 07-12-00524-CR
02-05-2013
MATTHAN ETHRIDGE, APPELLANT v. THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT OF GARZA COUNTY;
NO. 10,707; HONORABLE JOHN LEE NORMAN, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ORDER
Pending before this Court are appellant's "Motion to Abate Appeal" and "Motion for Preparation of Record." For the reasons below and with the following exceptions and instructions, we will grant those motions.
Procedural History
On August 25, 2012, appellant, Matthan Ethridge, was convicted in the County Court of Garza County of the offense of driving while intoxicated, a class B misdemeanor, and sentenced to serve ninety-six hours in the Garza County Jail. He filed a pro se notice of appeal from said conviction on September 20, 2012.
After sentence was imposed but before he filed his pro se notice of appeal, appellant filed in the trial court a pro se motion requesting appointed appellate counsel and a free record on appeal. Following a hearing held on October 11, 2012, the trial court denied appellant's motion by order dated December 3, 2012.
The Clerk of this Court received the clerk's record in this cause and, subsequently, other submissions relating to a purported appeal from the trial court's indigence determination. Following our Clerk's Office's review of the record, it determined that another pro se "notice of appeal" had been filed, this one entitled "Notice of Appeal of Trial Court's Ruling on Indigency," filed December 19, 2012, and, indeed, purporting to appeal the trial court's indigence determination which formed the basis of the trial court's December 3rd order denying appellant's motion for appointed counsel and a free record.
Apparently in connection with appellant's pro se "Notice of Appeal of Trial Court's Ruling on Indigency," motions were filed for this Court's consideration by an attorney, Mr. Frank Sellers, who, in those motions, has represented to this Court that he has agreed to represent appellant on the limited matter of securing review of the indigence issue and has agreed to do so on a pro bono basis "so that justice be done." The clerk's record indicates that Mr. Sellers acted as appointed counsel for appellant at trial. This Court will consider Mr. Sellers's representation to this Court sufficient to designate him as lead counsel for the limited purpose of securing review of the trial court's order finding appellant not indigent. See TEX. R. APP. P. 6.2(c). We note that our liberal application of Rule 6.2 here should not be taken as disregard for the more formal mechanisms contemplated by Rule 6. On these facts and in the spirit of facilitating both pro bono representation and removing procedural obstacles that could hinder efficient review of the matter, we will conclude that Mr. Sellers, as signatory on the motions filed for this Court's consideration, is lead counsel for the purpose of reviewing the indigence issue.
The Court will note that, should the need arise in the subsequent portion of appellant's appeal of his conviction, Mr. Sellers's efforts in concluding his representation in a manner contemplated by the applicable rules of appellate procedure and aimed at simplifying the Court's administrative duties in this matter would be looked on with favor by the Court.
Motion to Abate Appeal
In his "Motion to Abate Appeal," appellant asks that this Court abate the pending appeal of appellant's conviction and sentence until the resolution of "Appellant's collateral appeal regarding his indigency status." We first note that no separate appeal is created by appellant's "notice of appeal" from the trial court's order on indigence. See Ham v. State, 301 S.W.3d 930, 931 (Tex.App.—Amarillo 2009, order) (per curiam); see also TEX. R. APP. P. 12.2(c) ("All notices of appeal filed in the same case must be given the same docket number."). That is, no separate "notice of appeal" is required. Ham, 301 S.W.3d at 931; Ramirez v. State, Nos. 04-00-00031-CR, 04-00-00037-CR, 04-00-00199-CR, 2000 Tex. App. LEXIS 4110, at *2 (Tex.App.—San Antonio June 21, 2000, no pet.). It would appear that the intermediate appellate courts have come to the consensus on the general proposition that review of a trial court's indigence determination in a criminal case is a matter ancillary—not separate—to the appeal of the merits of the conviction and sentence.See, e.g., Ham, 301 S.W.3d at 931; Duncanv. State, 158 S.W.3d 606, 607 (Tex.App.—Waco 2005, order) (per curiam); Ramirez, 2000 Tex. App. LEXIS 4110, at *2.
In fact, at least one sister court has characterized the vehicle by which an appellate court reviews the trial court's indigence determination as more in the nature of a motion for a free record. See Ramirez, 2000 Tex. App. LEXIS 4110, at *2.
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Nevertheless, with that caveat having been noted, we GRANT appellant's motion to abate the portion of the pending appeal in which appellant has sought review of the merits of his conviction and sentence in trial court cause number 10,707. We abate that portion of the appeal until such time as the indigence issue is resolved and this Court issues further orders relating to the reinstatement or alternate disposition of the remaining portion of the case and reconfigures the applicable appellate timetables. As a result of this order, the pending portion of this appeal will be limited to the issues raised in connection with the trial court's order entered December 3, 2012, in which the trial court denied appellant's pro se motion requesting appointed counsel and a free record on appeal. Cf. Ham, 301 S.W.3d at 931.
Motion for Preparation of Record
Also filed on appellant's behalf in furtherance of seeking review of the trial court's indigence determination is appellant's "Motion For Preparation of Record." In his motion, appellant requests that this Court order the preparation of a limited record for the limited purpose of reviewing the trial court's denial of appellant's motions. This Court is authorized to order the preparation of a record for the limited purpose of reviewing the trial court's indigence determination, either on a party's motion or on our own motion. See Snoke v. State, 717 S.W.2d 5, 6 (Tex.Crim.App. 1986) (en banc); Jessop v. State, No. 03-10-00393-CR, 2010 Tex. App. LEXIS 6772, at *1 (Tex.App.— Austin Aug. 20, 2010) (mem. op., not designated for publication) (per curiam); see also TEX. R. APP. P. 34.6(d), 35.3(c), 43.6; In re Arroyo, 988 S.W.2d 737, 739 (Tex. 1998) (orig. proceeding) (per curiam). Because it would appear that the trial court clerk has already prepared and filed in this Court a full clerk's record, we limit our order to the reporter's record. We GRANT appellant's "Motion for Preparation of Record" and order the court reporter to prepare and file with the Clerk of this Court a record of the hearing on appellant's pro se motion held on October 11, 2012, including all exhibits introduced in connection with that hearing. The court reporter should file said limited record with the Clerk of this Court on or before March 4, 2013.
Within thirty days of the filing of the limited reporter's record, lead counsel for appellant on this matter shall file a brief in support of appellant's contention that the trial court erroneously concluded that appellant was not indigent and, therefore, improperly denied appellant's motion for appointed counsel and a free record. The State's brief responding to appellant's contention will be due thirty days from the date appellant's brief is filed. The abatement of the remaining portion of this case, that portion specifically pertaining to the direct appeal from appellant's DWI conviction, will remain effective until this Court issues further orders pertaining to the reinstatement or other disposition of that portion of the case.
It is so ordered.
Per Curiam
Do not publish.