Herman Lee Kindred v. the State of Texas

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00473-CR

Herman Lee Kindred, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY NO. 24CCR01048, THE HONORABLE JOHN MICHAEL MISCHTIAN, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

On appellant Herman Lee Kindred’s pro se motion, we previously remanded this

cause to the trial court to determine whether Kindred should be appointed appellate counsel.

Kindred v. State, No. 03-24-00473-CR, 2025 WL 567850, at *1 (Tex. App.—Austin Feb. 21, 2025,

order) (per curiam) (mem. op., not designated for publication); see State v. Torres,

No. 03-24-00033-CR, 2025 WL 643998, at *1 (Tex. App.—Austin Feb. 28, 2025, order) (per

curiam) (mem. op., not designated for publication) (trial court is responsible for appointing

counsel to represent indigent appellants); Tex. Code Crim. Proc. arts. 1.051(d), 26.04(j)(2). The trial court held a hearing on March 26, 2025. Although notice of the hearing

was sent to Kindred’s address of record in this Court, 1 he did not attend the hearing. The trial

court therefore found that it was unable to determine, as directed in our abatement order, whether

Kindred is indigent and desires representation. On April 28, 2025, Kindred filed a second

motion for appointment of counsel, asserting that he had not received the trial court’s notice and

still wanted an attorney on appeal.

Upon further review of the record, we note that the trial court found Kindred to be

indigent at trial. Further, the State did not challenge this finding, and the record contains no

evidence of a material change in his financial circumstances or finding by the trial court

that he is no longer indigent. See Tex. Code Crim. Proc. art. 26.04(p); Wright v. State,

No. 03-22-00635-CR, 2024 WL 2946317, at *1 (Tex. App.—Austin June 12, 2024, no pet.)

(mem. op., not designated for publication). Indeed, the record indicates that the clerk’s record

for this appeal was prepared for Kindred at no cost. See Tex. R. App. P. 20.2.

Indigent defendants are constitutionally entitled to appointed counsel for their first

appeals as of right. Cooks v. State, 240 S.W.3d 906, 910 (Tex. Crim. App. 2007) (citing Mempa

v. Rhay, 389 U.S. 128, 134 (1967); Douglas v. California, 372 U.S. 353, 357 (1963). The

legislature requires that the trial court appoint counsel for indigent defendants to represent them

in appeals to this Court. See Tex. Code Crim. Proc. arts. 1.051(d)(1), 26.04(c).

Accordingly, we again abate this appeal and remand the cause to the trial court

with instructions to appoint counsel for Kindred. See Harty v. State, No. 03-15-00066-CR,

2017 WL 474063, at *1 (Tex. App.—Austin Feb. 2, 2017, order) (per curiam) (mem. op., not

1 The address to which the notice was sent is also the return address on Kindred’s filings in this case. 2 designated for publication) (instructing trial court to appoint appellate counsel without necessity

of hearing).

The trial court shall make all necessary orders and include them (including the

name, address, and phone number of any attorney it may appoint to represent Kindred in this

appeal) in a supplemental clerk’s record to be filed with this Court by June 13, 2025. Kindred’s

pending motion for appointment of counsel is dismissed as moot.

It is so ordered May 30, 2025.

Before Chief Justice Byrne, Justices Kelly and Ellis

Abated and Remanded

Filed: May 30, 2025

Do Not Publish