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Stanbery v. State

Court of Appeals Fifth District of Texas at Dallas
Mar 20, 2017
No. 05-17-00105-CR (Tex. App. Mar. 20, 2017)

Opinion

No. 05-17-00105-CR No. 05-17-00106-CR No. 05-17-00107-CR

03-20-2017

CLYDE RANDALL STANBERY, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 397th Judicial District Court Grayson County, Texas
Trial Court Cause Nos. 066345 , 066346, 067135

ORDER

The reporter's record in these cases is overdue. The court reporter has filed letters with the Court representing that the reporter's record has not been filed because the trial court has not authorized appeals in these cases nor has it authorized preparation of a free record. The court reporter further alleges appellant has not been found indigent, he has no appellate attorney, and no one has contacted her to make arrangements to pay for the record.

A docketing statement has been filed in cause no. 05-17-00105-CR and the clerk's records have been filed in all three cases. The notices of appeal and the docketing statement were filed by Gaylon P. Riddels as appellant's attorney. The docketing statement states that the reporter's record was requested on January 30, 2017 and that appellant is an indigent.

The clerk's records show the trial court found appellant to be indigent and appointed Riddels to represent him throughout the trial court proceedings. However, on the same date he filed the notices of appeal on appellant's behalf, Riddels also filed in the trial court motions to withdraw from the representation. The motions request that appellate counsel be appointed for appellant "because he is indigent and cannot afford to employ counsel." By order dated February 3, 2017, the trial court granted Riddels's motions and allowed him to withdraw, but it did not appoint appellate counsel. Riddels has not filed a motion to withdraw from appellate representation in the Court and is still listed as appellant's lead counsel in the Court's records.

The trial court has filed certifications asserting appellant has no right to appeal because he entered into plea bargains and waived his right to appeal. The judgments, however, state appellant entered open guilty pleas. There are no formal plea bargain agreements in the clerk's records. Each clerk's record does contain a "Judge's Admonishment" in which the trial court states it has determined that a plea bargain agreement exists under which appellant will plead guilty in exchange for the State making recommendations for sentencing. According to the Judge's Admonishments, in cause no. 05-17-00105-CR, the State recommended restitution, the dropping of two counts, and credit for time served. In the remaining causes, the State recommended only concurrent sentencing and credit for time served. All three clerk's records contain waivers of the right to appeal executed by appellant.

Based on the record, it is unclear to the Court whether appellant has assistance of counsel, whether appellant is at fault for the failure to file the reporter's record, and whether the trial court's certifications are accurate. See Jones v. State, 488 S.W.3d 801, 804-07 (Tex. Crim. App. 2016) (discussing requirements for agreements between State and defendant that would support enforceable waiver of right to appeal).

To assist the Court in making these determinations, the trial court is ORDERED to conduct a hearing and make findings of fact regarding whether appellant is indigent, whether appellant is entitled to appointment of counsel, and whether appellant is entitled to proceed without payment of costs for the reporter's record. If the trial court cannot obtain appellant's presence at the hearing, the trial court shall conduct the hearing in appellant's absence. See Meza v. State, 742 S.W.2d 708 (Tex. App.-Corpus Christi 1987, no pet.) (per curiam).

If the trial court determines appellant is indigent and not represented by counsel, the trial court is ORDERED to appoint counsel for appellant.

The trial court shall determine (1) whether appellant requested preparation of the reporter's record; (2) the date such request was made; and (3) whether appellant, if not indigent, paid or made arrangements to pay for preparation of the reporter's record. If the trial court determines appellant is indigent and entitled to proceed without payment of costs for the reporter's record, the trial court shall determine whether appellant has been deprived of the reporter's record because of ineffective assistance of counsel, indigence, or for any other reason.

We ORDER the trial court to transmit to this Court a supplemental clerk's record, containing the written findings of fact, any recommendations, any supporting documentation, and any orders within THIRTY DAYS of the date of this order.

This appeal is ABATED to allow the trial court to comply with this order. The appeal shall be reinstated thirty days from the date of this order or when the supplemental record is received, whichever is earlier.

/s/ ADA BROWN

JUSTICE


Summaries of

Stanbery v. State

Court of Appeals Fifth District of Texas at Dallas
Mar 20, 2017
No. 05-17-00105-CR (Tex. App. Mar. 20, 2017)
Case details for

Stanbery v. State

Case Details

Full title:CLYDE RANDALL STANBERY, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Mar 20, 2017

Citations

No. 05-17-00105-CR (Tex. App. Mar. 20, 2017)