Jimmy Parr v. State

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00207-CR

Jimmy Parr,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2003-667-C2

      ABATEMENT ORDER

            Jimmy Parr was convicted of robbery on December 1, 2004.  The Court of Criminal Appeals granted Parr an out-of-time appeal pursuant to his application for writ of habeas corpus.  Counsel for Parr then timely filed a notice of appeal for Parr.  He requested and was granted one extension to file his brief.

          Counsel now files a “Motion to Withdraw as Appellate Counsel.”  Counsel alleges that Parr is dissatisfied with counsel’s representation.  Although the title of the motion might suggest that this court is being asked to decide the withdrawal issue, the motion properly requests abatement so that the trial court can consider the merits of the motion, and if granted, to also consider the substitution or appointment of other counsel for this appeal.

          Because counsel is appointed, the trial court must decide whether to allow counsel to withdraw and whether to allow the substitution of counsel.  See Enriquez v. State, 999 S.W.2d 906, 907-908 (Tex. App.—Waco 1999, order), overruled on other grounds, Meza v. State, 206 S.W.3d 684 (Tex. Crim. App. 2006).  The motion requesting abatement is granted.

            This case is abated to the trial court to hold a hearing within 30 days from the date of this order to consider counsel’s motion to withdraw and for substitution and the appointment of new counsel for Parr.  If Parr desires to waive his right to counsel and represent himself on appeal, the waiver should be made knowingly and intelligently and he should be warned of the dangers and disadvantages accompanying such waiver.  Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975); Hatten v. State, 71 S.W.3d 332, 333 (Tex. Crim. App. 2002).  A waiver of the right to counsel must be in writing and must substantially comply with article 1.051(g) of the Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon 2005). 

          Supplemental Clerk’s and Reporter’s Records are ordered to be filed within 45 days from the date of this order.

                                                                                    PER CURIAM

Before Chief Justice Gray,

          Justice Vance, and

          Judge Anderson^[1]

Motion granted; appeal abated

Order issued and filed November 21, 2007

Do not publish

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[1] Ken Anderson, Judge of the 277th District Court of Williamson County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code.  See Tex. Gov't Code Ann. § 74.003(h) (Vernon 2005).