Cesar Dan Hernandez-Sandoval v. State

Opinion

NO. 07-11-00085-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 31, 2011

CESAR DAN HERNANDEZ-SANDOVAL, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 291ST DISTRICT COURT OF DALLAS COUNTY;

NO. F-0954675-U; HONORABLE SUSAN LYNN HAWK, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER OF ABATEMENT AND REMAND

Pending before this Court is “Appellant’s Motion for Abatement of Appeal to Allow

Withdrawal of Counsel and Appointment of New Counsel” in which appointed counsel

explains that health complications require that he reduce his appellate workload.

Counsel requests, “in the interest of justice for Appellant,” that this Court grant counsel

leave to withdraw, abate the instant cause, and remand it to the trial court for

appointment of new counsel to prosecute appellant’s appeal. We will deny the motion

in part, grant the motion in part, and remand this cause to the trial court for further

proceedings. When faced with a motion requesting that original court-appointed attorney be

allowed to withdraw and that another attorney be substituted to pursue the appeal, the

Texas Court of Criminal Appeals has stated that “it is fitting that a case should be

abated to the trial court for substitution of counsel,” “[e]specially given the elaborate

mechanism for making court appointments for indigent criminal defendants that is now

in place under Article 26.04.” Meza v. State, 206 S.W.3d 684, 688 (Tex.Crim.App.

2006) (citing with approval Enriquez v. State, 999 S.W.2d 906, 908 (Tex.App.—Waco

1999, order)). Under Article 26.04, a court-appointed attorney shall “represent the

defendant until charges are dismissed, the defendant is acquitted, appeals are

exhausted, or the attorney is relieved of his duties by the court or replaced by other

counsel after a finding of good cause is entered on the record.” TEX. CODE CRIM. PROC.

ANN. art. 26.04(j)(2) (West Supp. 2010).

Based on Article 26.04’s directives regarding the responsibility for appointing

counsel for indigent defendants and the duration of representation by a court-appointed

attorney and based on Meza’s approval of the abate and remand procedure in this

situation, we abate and remand this cause to the trial court to determine whether

counsel should be granted leave to withdraw from representation of appellant. See

Matthews v. State, Nos. 07-10-00385-CR & 07-10-00386-CR, 2011 Tex. App. LEXIS

2715, *2 (Tex.App.—Amarillo Apr. 12, 2011, no pet.) (mem. op., not designated for

publication) (emphasizing that it is the trial court which “possesses the authority to

relieve or replace appointed counsel on a finding of good cause”). Therefore, with

respect to counsel’s request that this Court grant him leave to withdraw from

representation at this time, we deny said request. In all other respects, we grant the 2 motion, abate this cause, and remand it to the trial court for further proceedings so that

the trial court may take such measures as may be necessary to assure appellant

effective assistance of counsel.

Upon remand the trial court shall determine (1) whether to grant original

appointed counsel’s motion to withdraw and, if so, (2) whether appellant still desires to

prosecute this appeal and is indigent and entitled to new appointed counsel.

Concerning the trial court’s resolution of the foregoing issues, it shall execute findings of

fact and conclusions of law, and shall cause its findings, conclusions, and any orders

the trial court signs to be included in a supplemental clerk’s record. Should the trial

court appoint new counsel for appeal, the name, address, telephone number, and state

bar number of counsel shall be included in the order appointing new counsel. Should

the trial court conduct a hearing of this matter, the evidence and argument presented

shall be included in a supplemental reporter’s record. The trial court shall cause the

supplemental clerk’s records and the supplemental reporter’s record, if any, to be filed

with the Clerk of this Court on or before September 26, 2011. Should additional time be

necessary for performing these tasks, the trial court may request same on or before

September 26, 2011.

It is so ordered.

Per Curiam

Do not publish.