David Winstead v. State

• Court: Court of Appeals of Texas
• Decided: April 15, 2014
• Docket: 13-12-00589-CR
• Status: Published

Opinion

NUMBER 13-12-00589-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DAVID NORWAY WINSTEAD, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 357th District Court of Cameron County, Texas.

ORDER ABATING APPEAL

Before Justices Rodriguez, Garza, and Perkes Per Curiam

Before us is a document titled “Appearance of Counsel,” a motion to re-brief, and

a motion to check out the clerk’s record and the reporter’s record, all filed on April 8, 2014

by Larry Warner, who identified himself as counsel for appellant David Norway Winstead.

See TEX. R. APP. P. 6.2 (“An attorney other than lead counsel may file a notice stating that

the attorney represents a specified party to the proceeding . . . .”). Yet on September 19, 2012, after appellant David Norway Winstead filed an affidavit of indigency, the trial

court had determined Winstead was “too poor to employ counsel” and had appointed

Alfredo Padilla to defend him. Padilla filed a timely notice of appeal and, in this appeal,

is identified as lead counsel. See id. at R. 6.1 (“Unless another attorney is designated,

lead counsel for an appellant is the attorney whose signature first appears on the notice

of appeal.”). On May 30, 2013, Padilla filed Winstead’s appellate brief presenting eight

issues for this Court’s consideration. On July 30, 2013, the State filed its brief. We

submitted this appeal on December 17, 2013.

Now Warner is seeking to review the record and independently determine “viable

issues” on appeal. He also asks that we allow rebriefing, suggesting by the authority he

cites that this is in light of Winstead’s desire to have private counsel retained by his family.

The certificate of service on each of the above documents reflects that Warner copied

only the Cameron County District Attorney’s office. He did not copy Padilla, Winstead’s

lead counsel on appeal. See id. at R. 6.3 (“Any notice, copies of documents filed in an

appellate court, or other communications must be sent to . . . each party’s lead counsel

on appeal.”). Padilla has filed no motion to withdraw. See id. at R. 6.5 (providing that

an appellate court may, on appropriate terms and conditions permit an attorney to

withdraw from representing a party in the appellate court). We have received no

appropriately signed designation of new lead counsel. See id. at R. 6.1(c) (“If a new lead

counsel is being designated, both the new attorney and either the party or the former lead

counsel must sign the notice.”).

2 Because we are unable to determine who is representing Winstead in this appeal

and what Winstead’s desires are in this matter, we ABATE the appeal and REMAND the

cause to the trial court for clarification. Upon remand, the trial court shall hold a hearing,

if necessary, and shall make and reduce to writing any findings and orders clarifying

Winstead’s desires regarding the prosecution of this appeal and his representation. The

trial court shall cause its findings and conclusions, together with any orders it may enter,

to be included in a supplemental clerk’s record. It shall also cause a supplemental

reporter’s record of any proceedings to be prepared. The supplemental clerk’s record

and supplemental reporter’s record, if any, shall be filed with the Clerk of this Court on or

before the expiration of thirty days from the date of this order. This appeal will be

reinstated upon receipt of the foregoing materials and upon further order of this Court.

It is so ORDERED.

PER CURIAM

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

Delivered and filed the 15th day of April, 2014.