Arthur Kelvin Lovell v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 25, 2022
• Docket: 13-21-00115-CR
• Status: Published

Opinion

NUMBERS 13-21-00115-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ARTHUR KELVIN LOVELL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 183rd District Court of Harris County, Texas.

ORDER OF ABATEMENT

Before Justices Longoria, Hinojosa, and Silva Order Per Curiam

This cause is before the Court on appellant’s pro se motion for appointment of

counsel. The Court granted appellant’s court appointed counsel’s three motions for

extension of time to file a brief. The final extension of time was granted by order and

appellant’s counsel was instructed that no further extensions of time will be granted

absent new and exigent circumstances and the brief was due to be filed on or before December 27, 2021. On December 30, 2021, the Clerk of the Court sent notice to

appellant’s counsel that the brief was now past due. Finally, on January 12, 2022, an

Anders brief was filed in this matter. Now, acting pro se, appellant requests new counsel

be appointed claiming he waived certain rights in court not based on sound judgment or

understanding. Appellant requests different counsel to review and proceed with this

appeal.

Appellant is entitled to effective assistance of counsel, and we have a duty to

ensure that appellant’s rights are protected. However, appellant does not have the right

to dictate the counsel of his choosing and appointment of new counsel rests within the

sound discretion of the trial court. Carroll v. State, 176 S.W.3d 249, 255 (Tex. App.—

Houston [1st Dist.] 2004, pet. ref’d). In those circumstances where the appointment of

counsel may be necessary, an appellate court should abate the proceeding to the trial

court for determination of this issue. Accordingly, we carry the motion, abate the appeal,

and remand the cause to the trial court for further proceedings consistent with this order.

Upon remand, the trial court shall determine whether appellant is entitled to court-

appointed counsel. If the trial court determines that new counsel should be appointed, the

name, address, email address, telephone number, and state bar number of newly

appointed counsel shall be included in the order appointing counsel. If the trial court

determines appellant has abandoned this appeal and/or is not entitled to new court-

appointment counsel, it shall issue such findings. The trial court shall further cause its

2 findings and/or order to be included in a supplemental clerk’s record to be filed with the

clerk of the court on or before the expiration of thirty days from the date of this order.

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 25th day of March, 2022.