Jimmy Dale Hall, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: April 21, 2020
• Docket: 06-20-00023-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-20-00023-CR

JIMMY DALE HALL, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 336th District Court Fannin County, Texas Trial Court No. CR-19-26934

Before Morriss, C.J., Burgess and Stevens, JJ. ORDER Appellant, Jimmy Dale Hall, Jr., was convicted in Fannin County, Texas, of possession of

more than four grams, but less than two hundred grams, of a Penalty Group 1 controlled substance

and was sentenced, after enhancement, to sixty years’ incarceration. The trial court appointed

Lacinda Brese-LeBron to represent Hall at trial. Although the trial court did not issue an order

appointing Brese-LeBron to represent Hall on appeal, Brese-LeBron has assumed Hall’s appellate

representation. At a status hearing following Hall’s trial, the trial court questioned Brese-LeBron

about this issue:

THE COURT: . . . . And then do you anticipate you -- you also want to handle the appeal?

[Counsel for Hall]: At this time, Your Honor, I -- I do intend to handle the appeal --

THE COURT: Okay.

[Counsel for Hall]: -- unless Mr. Hall instructs me otherwise.

On April 3, 2020, Hall filed a motion with this Court asking for the appointment of different

appellate counsel. Hall explained that he believed that trial counsel was ineffective and would,

therefore, be unable to raise the issue of ineffective assistance of counsel on appeal. This issue

presents an apparent conflict of interest between Hall and appellate counsel Brese-LaBron.

The right of an accused in a criminal proceeding extends to both trial and appeal. Gideon

v. Wainwright, 372 U.S. 335, 344 (1963); Buntion v. Harmon, 827 S.W.2d 945, 948 (Tex. Crim.

App. 1992). “The right to particular counsel, whether retained or appointed, is subject to

limitations.” Camacho v. State, 65 S.W.3d 107, 109 (Tex. App.—Amarillo 2000, no pet.)

2 (per curiam) (citing Wheat v. United States, 486 U.S. 153, 159 (1988); Stearnes v. Clinton, 780

S.W.2d 216, 222 (Tex. Crim. App. 1989) (orig. proceeding)). “One such limitation arises in the

context of counsel with an actual or potential conflict of interest in representing the accused.” Id.

(citing Wheat, 486 U.S. at 161–63). Indeed, “[a] criminal defendant is entitled to assistance of

counsel free from conflict of interest.” Id. (citing Glasser v. United States, 315 U.S. 60, 75–76

(1942); Gonzales v. State, 605 S.W.2d 278, 281–82 (Tex. Crim. App. [Panel Op.] 1980)). “If

ineffective assistance of counsel at trial is raised as an issue on appeal by trial counsel who is also

functioning as appellate counsel, a potential or actual conflict between the interests of appellant

and appellate counsel arises.” Id. at 109–10 (citing Robinson v. State, 16 S.W.3d 808, 812 (Tex.

Crim. App. 2000)).

The record reflects that appellate counsel in this case also served as trial counsel. The

record further reflects that Hall believes certain issues regarding the effectiveness of trial counsel

should be raised on appeal. Finally, the record reflects that counsel enlisted to take on this appeal

only until “Mr. Hall instruct[ed her] otherwise.” In light of the foregoing and in the interests of

justice, we, sua sponte, abate this appeal to the trial court. On remand, we direct the trial court to

either (1) appoint new appellate counsel or (2) conduct a hearing at which Hall is present by

electronic means to determine (a) whether there is a potential or actual conflict of interest between

counsel and Hall, (b) whether Hall knowingly and voluntarily desires to waive any such potential

or actual conflict of interest, and, (c) if so, whether that waiver should be accepted. If Hall is not

willing to knowingly and voluntarily waive any potential or actual conflict of interest or if the trial

3 court determines that a waiver should not be accepted, then the trial court is directed to appoint

new counsel free of an actual or potential conflict of interest.

The trial court may enter any orders necessary to implement our directives. Any hearing(s)

should be conducted by the trial court within thirty days of the date of this order. Appropriate

orders and findings should be sent to this Court in the form of a supplemental clerk’s record within

fifteen days of the date of the appointment of new counsel or the hearing, whichever occurs first.

The reporter’s record of any hearing(s) should be filed with this Court in the form of a

supplemental reporter’s record within fifteen days of the date of the hearing.

All appellate timetables are stayed and will resume on our receipt of the supplemental

appellate record.

IT IS SO ORDERED.

BY THE COURT

Date: April 21, 2020