Opinion
No. 10-07-00109-CR
Opinion delivered and filed May 21, 2008. DO NOT PUBLISH.
Appealed from the 361st District Court Brazos County, Texas, Trial Court No. 06-01712-CRF-361.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
ORDER REINSTATING APPEAL
We have received a supplemental record showing that the trial court judge has appointed substitute appellate counsel for Scott. This appeal is reinstated from our April 2, 2008 Abatement Order.
DISSENT TO REINSTATEMENT ORDER
I must dissent to the reinstatement order under the circumstances presented in this proceeding. According to the majority's order reinstating the appeal, the reinstatement is based on the fact that "the trial court judge has appointed substitute counsel for Scott." This is not accurate. The trial court has, however, appointed additional counsel to represent Scott. But because, based on the record before us, the trial court has not removed the previously appointed counsel or relieved previously appointed counsel of his duties, the previously appointed counsel continues to represent Scott in this proceeding. Further the trial court has not conducted the hearing for which this proceeding was abated to resolve questions regarding the status of this appeal. This reinstatement is essentially as a result of a purported agreement between a majority of this court and the trial court. I did not join that agreement. Unfortunately the agreement proposed by the trial court for this and other proceedings only partially deals with the problems and issues presented under a variety of fact patterns when the trial court becomes aware that counsel appointed by the trial court may be, for any number of possible reasons, unable to fulfill the duties of counsel to represent indigent defendants, particularly in connection with an appeal. To address this problem more completely I proposed a standing order to be utilized by this court to give the trial court the maximum flexibility consistent with the Texas Rules of Appellate Procedure and the Code of Criminal Procedure. My proposed standing order was designed to assist the trial court in understanding all the requirements that impact the decision, explain the statutorily required documentation thereof, and the restrictions under which we operate. It was thus proposed with a view towards obtaining proper documentation of the appointment of new or additional counsel, as well as the removal or replacement of the originally appointed counsel and thereby avoid a future argument that the defendant was not properly represented on appeal or that he was improperly denied assistance from one or more of the counsel appointed to represent him. Though neither of the other justices on this court supported the adoption of the proposed standing order, I believe its text will be of assistance to the trial court and explains why I cannot join the court's agreement with the trial court. Accordingly, I set out the text of that proposed order as follows:STANDING ORDER NO. ? (proposed but not adopted by the Court)
The purpose of this order is to expedite the disposition of criminal cases by the appointment of New Counsel or Additional Counsel when the trial court becomes aware that Appointed Counsel is unable to adequately represent the defendant due to death, illness, impairment, conflict of interest, or for other good cause.
BACKGROUND
Generally, once the record is filed in the appellate court, all further proceedings in the trial court are suspended until the trial court receives the appellate court's mandate. TEX. R. APP. P. 25.2(g). However, as a statutory exception to this general rule, the legislature has given the trial court the responsibility and authority to appoint counsel to represent indigent defendants in criminal proceedings and to relieve appointed counsel of his duties or replace appointed counsel with other counsel upon a finding of good cause. TEX. CODE CRIM. PROC. ANN. art 26.04(j)(2) (Vernon Supp. 2007); Enriquez v. State, 999 S.W.2d 906, 907 (Tex.App.-Waco 1999, order) (construing predecessor to current statute; see Acts 1987, 70th Leg., ch. 979 § 2, amended by Acts 2001, 77th Leg., ch. 906, § 6). There is no limitation on the time frame during which the trial court may appoint, relieve, or replace counsel. See Enriquez, 999 S.W.2d at 908. Accordingly, the trial court may render such an order even after the appellate record has been filed and without the need for the appellate court to abate the proceedings to the trial court for a hearing.
ORDER AND SUSPENSION OF OTHER RULES
It is, therefore, ordered that in any case in which the trial court becomes aware of the inability of Appointed Counsel to timely file a brief or otherwise represent a defendant in a criminal proceeding, the trial court, without an abatement of the proceeding by this Court and even if such abatement has been ordered to determine why no brief has been filed, may for good cause remove Appointed Counsel and appoint New Counsel or appoint Additional Counsel to represent the defendant. In these situations, pursuant to Rule 2, we order the requirements of Rule 38.8(b)(2) and (3) suspended which would otherwise require this Court to abate the proceeding and require the trial court to hold a hearing when no appellant's brief has been timely filed. TEX. R. APP. P. 2; 38.8(b)(2), (3). And if a substitution of counsel is being ordered by the trial court, to the extent Rule 6.5 may apply, we also use Rule 2 to suspend the requirements of Rule 6.5. TEX. R. APP. P. 2; 6.5.
If the trial court decides to remove Appointed Counsel and appoints New Counsel, or decides to appoint Additional Counsel, with or without a formal hearing, the trial court must sign a written order. If Appointed Counsel is being relieved of his duties or replaced by other counsel, the written order must include the basis for and the finding of good cause. TEX. CODE CRIM. PROC. ANN. art 26.04(j)(2) (Vernon Supp. 2007). In addition to appointing New Counsel or Additional Counsel, the written order must also, if applicable, expressly remove Appointed Counsel. The order must also contain the name, mailing address, telephone number, fax number, if any, and State Bar Identification number of New Counsel or Additional Counsel.
Further, the trial court must, within 10 days of signing the written order, deliver the order to the trial court clerk who must prepare a clerk's record which includes the order and file that record with the Clerk of this Court within 10 days of receiving the order.In this proceeding, the majority is circumventing the requirements of the Rules of Appellate Procedure by not requiring the trial court to hold the abatement hearing in compliance with the Rules of Appellate Procedure. I would require compliance, or, as suggested by proposed standing order, use Rule 2 of the Rules of Appellate Procedure to lift that requirement in this and all similarly situated cases. Further, and more importantly, the majority is erroneously treating the appointment of New Counsel as a substitution of counsel and thereby creating a potential for claimed deprivation of counsel, ineffective assistance of counsel, or denial of representation by appointed counsel, for no apparent reason. For these reasons I cannot join the order and respectfully note my dissent.