Opinion
05-23-00521-CR
07-19-2024
ALEX PERRY NEAL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-82977-2022
ORDER
ROBBIE PARTIDA-KIPNESS JUSTICE
Before the Court is attorney Hunter Biederman's "Motion to Adopt Existing Brief." In the motion, Mr. Biederman states he is the court-appointed attorney for appellant Alex Perry Neal. However, our records show John Helms remains appellant's counsel of record in this proceeding, cause number 05-23-00521-CR, and its underlying trial court proceeding, case number 296-82977-2022.
Appellant has two appeals pending in this Court: (1) cause number 05-23-00519-CR, which appeals a judgment rendered in trial court cause number 296-81320-2023 (the Anders appeal), and (2) cause number 05-23-00521-CR, which appeals a judgment rendered in trial court cause number 296-82977-2022 (this proceeding). In a May 30, 2024 order, we removed the Anders appeal from the Court's May 28, 2024 submission docket and abated it, struck the Anders brief filed in the Anders appeal, granted Mr. Helms's motion to withdraw as counsel in the Anders appeal, and ordered the trial court to hold a hearing, make findings regarding indigency, and appoint new counsel to represent appellant in the Anders appeal if that court determines appellant is indigent and has not retained counsel. We specifically stated in the May 30, 2024 order that Mr. Helms remains counsel of record in cause number 05-23-00521-CR, and the appeal in that cause number was submitted May 28, 2024, remains on the May 28, 2024 docket, and will be decided in due course.
The trial court conducted hearings pursuant to our May 30, 2024 order on June 17, 2024, and June 19, 2024. Transcripts of those hearings have been filed in cause number 05-23-00519-CR. We may take judicial notice of those transcripts and, in the interest of justice and judicial economy, choose to do so here. See In re Innovation Res. Sol., LLC, No. 12-15-00254-CV, 2016 WL 1254058, at *3 (Tex. App.-Tyler Mar. 31, 2016, orig. proceeding) (taking judicial notice of hearing transcript filed in prior, related mandamus proceeding); see also Humphries v. Humphries, 349 S.W.3d 817, 820, n.1 (Tex. App.-Tyler 2011, pet. denied) (appellate court may take judicial notice of its own records in same or related proceeding involving same or nearly same parties); Clark v. Chrietzberg, 348 S.W.2d 476, 478 (Tex. Civ. App.-Dallas 1961, writ dism'd) ("This court takes judicial notice of its records of a prior appeal of the same case.").
At the June 17, 2024 hearing, appellant told the court he did not want to go forward with an appeal of his case. The trial judge stated he would appoint counsel for appellant "in an abundance of caution" to allow time for appellant and appointed counsel to discuss appellant's options. Although the transcript shows the hearing was held pursuant to this Court's May 30, 2024 order in the Anders appeal, the trial court did not specifically state in which appeal new counsel would be appointed. It appears the trial court clerk thought the appointment applied in both cases. The trial court's docket sheet in trial court cause number 296-81320-2023 includes a general docket entry dated June 17, 2024, stating "Attorney Hunter Biederman is appointed to represent the defendant for his appeal." The trial court's docket sheet in trial court cause number 296-82977-2022 also includes a general docket entry dated June 17, 2024, stating "Attorney Hunter Biederman is appointed to represent the defendant for his appeal." The Collin County Indigent Defense Office sent Mr. Biederman a letter dated June 17, 2024 notifying him of his appointment to represent Alex Perry Neal in trial court case number 296-829772022.
A supplemental clerk's record filed June 17, 2024, in the Anders appeal includes this docket sheet. We take judicial notice of that record.
A supplemental clerk's record filed June 18, 2024, in this proceeding (cause number 05-23-00521-CR) includes this docket sheet.
The trial judge clarified during a June 19, 2024 hearing that he had appointed Mr. Biederman to represent appellant only in the Anders appeal. During that hearing, the trial court stated the court found appellant indigent at its prior hearing concerning our Court's May 30, 2024 order, "and in an abundance of caution, appointed Mr. Biederman to Cause Number 296-81320-2023." The trial judge further stated he had spoken to Mr. Helms, appellant's retained counsel in trial court cause number 296-82977-2022, and Mr. Helms confirmed "he wants to stay on the case[.]" The trial judge then stated, "The Court is going to continue to have Mr. Biederman assigned to the one case and Mr. Helms assigned to the other as his counsel[.]" The "2nd Supplemental Clerk's Record," which was filed in this proceeding on June 20, 2024, confirms Mr. Biederman was not appointed to represent appellant in this proceeding. Specifically, the 2nd Supplemental Clerk's Record includes a docket sheet in trial court case number 296-82977-2022, and that docket sheet includes a June 17, 2024 "Updated General Docket Entry," which states "Court finds defendant indigent. Attorney John Helms will continue to represent the defendant for his appeal."
Based on these records, we conclude Mr. Biederman was not appointed to represent appellant in this appellate cause number and its corresponding trial court case number. Mr. Helms has not filed a motion to withdraw as counsel in this proceeding and remains appellant's counsel in cause number 05-23-00521-CR. This proceeding was submitted to the Court for decision on May 28, 2024, without oral argument and based on the briefs on file at the time of submission. The Court will issue an opinion in cause number 05-23-00521-CR in due course. Accordingly, we DENY Mr. Biederman's motion.
We further DIRECT the Clerk of this Court to remove Mr. Biederman as appellant's counsel in this proceeding - cause number 05-23-00521-CR. John M. Helms remains appellant's counsel of record in this cause number.