Duncan v. Evans

653 S.W.2d 38, 1983 Tex. Crim. App. LEXIS 1103

• Court: Court of Criminal Appeals of Texas
• Decided: June 29, 1983
• Docket: 69113
• Status: Published

Opinions

OPINION

McCORMICK, Judge.

This original application for writ of prohibition arises from an “Order to Stay Proceedings” of the First Court of Appeals directing the judge of the County Criminal Court at Law No. 3 of Harris County to remove a court-appointed attorney in a case pending before the appeals court, and appoint another attorney. Applicant Duncan, Judge of the affected county court, contends that he has no jurisdiction to take the action ordered by respondents.

Although it has been made to appear in another cause number before this Court that the respondent court has vacated its order, such is not reflected by the record herein. Absent such affirmative showing, we should not presume mootness. Compare Garza v. State, 622 S.W.2d 85 (Tex.Cr.App.1981).

The issue presented in this case is akin to others which have arisen recently in the various courts of appeals. See Ex parte Gray, 649 S.W.2d 640 (Tex.Cr.App.1983); and In re Ganne, 643 S.W.2d 195 (Tex.App. —Austin, 1982). Distilled into the formulation of an issue which we must address is this: What authority is available to the courts of appeals to enforce the responsibility of appointed appellate counsel for an indigent appellant to insure the filing of an appellate brief?

In Picard v. State, 631 S.W.2d 761 (Tex. App. — Beaumont, 1981), the Court of Appeals stated:

“Having accepted the responsibility and duty delegated to this Court, we will make use of such tools for the enforcement of the responsibility as are available to us.” Picard v. State, supra, at page 764.

Because of the confusion which exists as to what “tools” are available, it is a concom-mitant responsibility of the Court to delineate those “tools” and remove, if possible, any confusion which may have occurred due to our own pronouncements.

Initially, we must address the holdings of Guillory v. State, 557 S.W.2d 118, 119 (Tex.Cr.App.1977), and their applicability to the instant issue. In promulgating its order herein, the respondent court relied on Guil-lory in ordering applicant to remove the recalcitrant attorney and appoint substitute counsel. However, Guillory must be read within the context of the appellant procedures existent at the time of its rendition. In fact, the Court in Picard v. State, supra, noted that it may not have at its disposal all of the remedies available to a trial judge as outlined in Guillory. Picard v. State, supra, at page 764, footnote 5.

Because of the jurisdictional hurdle imposed by Article 44.11, V.A.C.C.P., when the appellate record is filed in the Court of Appeals, the trial court is without authority to act further except as to bond pursuant to Article 44.04, V.A.C.C.P. The effect of the respondent court’s “Order to Stay Proceedings” was to retain the case in the Court of Appeals, yet order the applicant to do an act he had no authority to do. Thus, the option of Guillory that “the court may relieve the attorney and appoint a substitute attorney” is unavailable to the Courts of Appeals.

Likewise, the argument that Article 44.-37, V.A.C.C.P., allowing the appellate courts to “make such orders as the law and nature of the case may require,” authorizes such action must fail. This grant of authority to the appellate courts does not reinvest jurisdiction in the trial court.

In lieu thereof, the Court of Appeals may in a case such as this, where the right of an indigent defendant to the effective assistance of counsel on appeal is in issue, abate the appeal and instruct the trial court to assure the protection of that right. By abating the appeal, jurisdiction may be properly returned to the trial court, and the trial court will have available to it all of the options delineated in Guillory. “After receipt of the appellate court’s mandate of abatement, the trial court still has control over the case until the supplemental record again reaches the appellate court.” 26 Tex. Jur., Criminal Law, Section 4195, page 533. See the following eases in which we said the abatement should be treated as if no appeal had been filed in the appellate court: Sanchez v. State, 458 S.W.2d 815 (Tex.Cr.App.1970); Williams v. State, 458 S.W.2d 932 (Tex.Cr.App.1970); Weeks v. State, 459 S.W.2d 639 (Tex.Cr.App.1970); Akin v. State, 464 S.W.2d 652, 653 (Tex.Cr.App.1971); Heiliger v. State, 471 S.W.2d 411 (Tex.Cr.App.1971); McKinney v. State, 477 S.W.2d 295 (Tex.Cr.App.1972); Jordan v. State, 479 S.W.2d 667 (Tex.Cr.App.1972); Martinez v. State, 488 S.W.2d 77 (Tex.Cr. App.1972); Lessing v. State, 509 S.W.2d 356 (Tex.Cr .App.1974).

Absent such procedure, the Courts of Appeals have available the power of contempt pursuant to Article 1911a, V.A.C.S. See, In re Ganne, supra; Ex parte Gray, supra, and Alvardo v. State, 634 S.W.2d 41 (Tex.App.— Beaumont 1982).

Accordingly, we find that respondent court was not authorized to enter the order complained of and that applicant is entitled to the relief sought. We are confident that respondent court will vacate its order. The writ will issue should compliance with this opinion not be forthcoming.

TOM G. DAVIS, J., dissents. CLINTON, J., joins the opinion of the Court except for the second paragraph thereof.