Frank Alton Martinez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 20, 2025
• Docket: 03-24-00502-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00502-CR

Frank Alton Martinez, Appellant

v.

The State of Texas, Appellee

FROM THE 51ST DISTRICT COURT OF TOM GREEN COUNTY NO. A-22-0858-SA, THE HONORABLE CARMEN DUSEK, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

Appellant Frank Alton Martinez has appealed his conviction for the offense of

assault of a family member. Martinez’s appointed appellate counsel has filed a motion to

withdraw, abate this appeal, and stay the filing of appellant’s brief until such time as new

appellate counsel has been appointed. In her motion, counsel advises this Court that she can no

longer represent Martinez because she has recently been offered and accepted a staff attorney

position with the Thirteenth Court of Appeals.

The trial court has the responsibility for appointing counsel to represent indigent

defendants on appeal as well as the authority to relieve or replace appointed counsel upon a

finding of good cause. See Tex. Code Crim. Proc. Ann. arts. 1.051(d), 26.04(j)(2). Thus, when

counsel is appointed by the trial court to represent an indigent defendant on appeal, it is the trial

court’s responsibility to relieve or replace counsel. See Enriquez v. State, 999 S.W.2d 906, 907 (Tex. App.—Waco 1999, no pet.); Williamson v. State, No. 13–12–00672–CR, 2013 WL

363677, at *1 (Tex. App.—Austin Jan. 25, 2013, no pet.) (mem. op., not designated

for publication).

We therefore dismiss counsel’s motion to withdraw, abate the appeal, and remand

the cause to the district court. Upon remand, counsel is instructed to re-file her motion to

withdraw with the district court. If the district court determines that good cause exists to relieve

counsel of her duties and replace her with substitute counsel, the district court shall permit

counsel to withdraw and promptly appoint substitute counsel for the appeal of this cause. A

copy of the court’s order appointing substitute counsel and the court’s order granting counsel’s

withdrawal shall be forwarded to this Court no later than March 3, 2025. Substitute counsel shall

file appellant’s brief within thirty days of appointment.1

Before Justices Triana, Theofanis, and Crump

Abated and Remanded

Filed: February 20, 2025

Do Not Publish

1 Counsel has also filed a motion for extension of time to file appellant’s brief. We dismiss that motion as moot. 2