ACCEPTED 03-15-00439-CR 6557585 THIRD COURT OF APPEALS AUSTIN, TEXAS 8/19/2015 10:37:09 AM JEFFREY D. KYLE CLERK
No. 03-15-00439-CR FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS AT AUSTIN, TEXAS 8/19/2015 10:37:09 AM JEFFREY D. KYLE Clerk
JOHN GABRIEL ESQUIVEL
Appellant
vs.
THE STATE OF TEXAS
Appellee
On Appeal from the 299 th District Court of Travis County, Texas Hon. Karen Sage Presiding Trial Court Cause No. D-1-DC-14-301500
APPOINTED COUNSEL’S MOTION TO REMAND THIS CASE TO TRIAL COURT FOR DETERMINATION OF WHETHER AMBER VASQUEZ BODE HAS BEEN HIRED TO REPRESENT APPELLANT IN THIS APPEAL
NOW COMES attorney GREGORY SHERWOOD, who was
appointed by the trial court to represent appellant JOHN GABRIEL
ESQUIVEL in this appeal, who files this motion to remand this case to the
trial court for a determination of whether Amber Vasquez Bode has been
hired to represent appellant in this appeal. In support of this motion, attorney SHERWOOD respectfully states as follows:
This writer was notified of his appointment to represent appellant on
appeal to this court late Friday afternoon, July 17, 2015, and filed a m for
extension of time to file notice of appeal on July 20, 2015. On July 23,
2015, attorney Amber Vasquez Bode filed with this court a “Motion for
Leave to File Out of Time,” stating in part, “On July 22, 2015, Appellant
hired new counsel, Amber Vasquez Bode, who now prays that the court
grant this Motion for Leave in order to ensure that Appellant retains his right
to appeal.” Page 2 of July 23, 2015 Motion for Leave to File Out of Time.
Ms. Bode’s office telephoned attorney SHERWOOD the morning of
July 24, 2015 to inform him that she had been hired to represent appellant in
this appeal, and to ask for his email address so that an Agreed Motion to
Substitute Counsel could be sent for his signature. That motion was emailed
the same day, attorney SHERWOOD signed it and returned it by email to
Ms. Bode’s law office, and a copy of that Agreed Motion to Substitute
Counsel addressed to the trial court is attached. Attorney SHERWOOD also
informed Ms. Bode’s office in his reply email that this agreed motion may
also need to be filed with this court.
Attorney SHERWOOD, who had already filed in the trial court
2 requests for the clerk’s record and reporter’s record on July 23, notified
court reporter Angela Chambers by email on July 24, 2015 that attorney
Amber Vasquez Bode had been hired to represent appellant in this appeal,
and Ms. Chambers confirmed receiving that information in a July 25, 2015
reply email, stating that she would contact Ms. Bode regarding payment
information for the reporter’s record.
On July 27, 2015, attorney SHERWOOD spoke with Ms. Bode in one
of the elevators at the Travis County Courthouse about this case. Ms. Bode
confirmed that she had been hired to represent appellant in this appeal.
Attorney SHERWOOD informed Ms. Bode that he had signed the Agreed
Motion to Substitute Counsel and emailed it back to her office on July 24.
As a result of this conversation, attorney SHERWOOD closed his file on this
matter, thinking that the Agreed Motion to Substitute Counsel would be
filed, he submitted a voucher for $232.06 to Travis County, and has received
payment of $232.00.
On August 7, 2015, this court issued a notice to the Travis County
District Clerk that a supplemental record should be filed containing the order
appointing attorney SHERWOOD in this appeal. That letter was addressed
to the District Attorney’s office, attorney SHERWOOD, attorney Amber
3 Vasquez Bode, and trial attorney Richard Jones. On August 18, 2015, this
court issued a letter addressed only to the District Attorney’s office and to
attorney SHERWOOD, with no mention of attorneys Bode or Jones, stating
that the supplemental clerk’s record had been filed, and that the docketing
statement was overdue and needed to be filed immediately. In response to
this letter, attorney SHERWOOD e-filed in the evening of August 18, 2015
an August 19, 2015 letter addressed to this court’s clerk’s office explaining
that he had been informed by Ms. Bode that she was the retained attorney for
appellant, that an Agreed Motion to Substitute Counsel had been sent by Ms.
Bode to attorney SHERWOOD, which was signed and returned to her office
(with a copy of that motion attached to that Aug. 19 letter), and that attorney
SHERWOOD had closed his file on this matter and was no longer
representing appellant since attorney Amber Vasquez Bode had been hired
as appellant’s attorney on appeal.
After e-filing this letter, attorney SHERWOOD reviewed the Travis
County AMP system to see if the attached Agreed Motion to Substitute
Counsel was ever filed with the District Clerk’s office. There is no entry on
the docket sheet that the motion has ever been filed. This writer does not
know whether it was ever filed, if it was ever presented to the trial court, or
4 whether it was ever acted upon.
As a result, it appears that this court still considers attorney
SHERWOOD counsel of record for appellant, even though attorney Amber
Vasquez Bode stated to this court in her July 23, 2015 Motion for Leave to
File Out of Time that, “On July 22, 2015, Appellant hired new counsel,
Amber Vasquez Bode . . . .” Since it is unclear why the attached Agreed
Motion to Substitute Counsel has not been ruled upon by the trial court,
attorney SHERWOOD moves this court to remand this case to the trial court
for a determination of whether attorney Amber Vasquez Bode has been hired
as appellant’s attorney in this appeal, and for entry of an order substituting
her as counsel for appellant in this appeal and permitting attorney
SHERWOOD to withdraw as appointed counsel in this appeal.
WHEREFORE, PREMISES CONSIDERED, attorney SHERWOOD
prays that this court, upon notice and opportunity to be heard by the State or
by retained attorney Amber Vasquez Bode, grant this motion and remand
this case to the trial court for a hearing to determine whether Amber
Vasquez Bode has been hired to represent appellant in this appeal, and to
enter appropriate orders designating the attorney for appellant in this appeal.
5 Respectfully submitted, /s/ Gregory Sherwood GREGORY SHERWOOD ATTORNEY P.O. Box 200613 Austin, Texas 78720-0613 (512) 484-9029 State Bar No. 18254600
APPOINTED ATTORNEY FOR APPELLANT JOHN GABRIEL ESQUIVEL
CERTIFICATE OF SERVICE
I hereby certify that a true copy of this document was served by email on August 19, 2015 upon the Travis County District Attorney’s Office, 509 W. 11 th Street, 2 nd Floor, Austin, Texas 78701 at its email address: AppellateTCDA@traviscountytx.gov, and by email upon the retained attorney for appellant, Amber Vasquez Bode at her email address: amberv@lawyers.com. /s/ Gregory Sherwood Gregory Sherwood
Certification of Compliance
According to the WordPerfect program used to create this document, there are 1,122 words in this document. /s/ Gregory Sherwood Gregory Sherwood
6 CAUSE NO. 0-1-DC-14-301500 ) STATE OF TEXAS ) 299 111 ) ) DIST RI CT COU RT ) VS. ) ) ) TRA VTS COUNTY. TEXAS JOHN ESQU IVEL ) Defendant )
AGREED MOTION TO SUBSTITUTE COUN S EL
TO THE HONORABLE JUDGE OF SAID COU RT:
NOW CO MES JOHN ES QUIVEL, Defendant in the above sty led causes, and would show the Co urt as fo ll ows:
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ACCEPTED 03-15-00439-CR 6557585 THIRD COURT OF APPEALS AUSTIN, TEXAS 8/19/2015 10:37:09 AM JEFFREY D. KYLE CLERK
No. 03-15-00439-CR FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS AT AUSTIN, TEXAS 8/19/2015 10:37:09 AM JEFFREY D. KYLE Clerk
JOHN GABRIEL ESQUIVEL
Appellant
vs.
THE STATE OF TEXAS
Appellee
On Appeal from the 299 th District Court of Travis County, Texas Hon. Karen Sage Presiding Trial Court Cause No. D-1-DC-14-301500
APPOINTED COUNSEL’S MOTION TO REMAND THIS CASE TO TRIAL COURT FOR DETERMINATION OF WHETHER AMBER VASQUEZ BODE HAS BEEN HIRED TO REPRESENT APPELLANT IN THIS APPEAL
NOW COMES attorney GREGORY SHERWOOD, who was
appointed by the trial court to represent appellant JOHN GABRIEL
ESQUIVEL in this appeal, who files this motion to remand this case to the
trial court for a determination of whether Amber Vasquez Bode has been
hired to represent appellant in this appeal. In support of this motion, attorney SHERWOOD respectfully states as follows:
This writer was notified of his appointment to represent appellant on
appeal to this court late Friday afternoon, July 17, 2015, and filed a m for
extension of time to file notice of appeal on July 20, 2015. On July 23,
2015, attorney Amber Vasquez Bode filed with this court a “Motion for
Leave to File Out of Time,” stating in part, “On July 22, 2015, Appellant
hired new counsel, Amber Vasquez Bode, who now prays that the court
grant this Motion for Leave in order to ensure that Appellant retains his right
to appeal.” Page 2 of July 23, 2015 Motion for Leave to File Out of Time.
Ms. Bode’s office telephoned attorney SHERWOOD the morning of
July 24, 2015 to inform him that she had been hired to represent appellant in
this appeal, and to ask for his email address so that an Agreed Motion to
Substitute Counsel could be sent for his signature. That motion was emailed
the same day, attorney SHERWOOD signed it and returned it by email to
Ms. Bode’s law office, and a copy of that Agreed Motion to Substitute
Counsel addressed to the trial court is attached. Attorney SHERWOOD also
informed Ms. Bode’s office in his reply email that this agreed motion may
also need to be filed with this court.
Attorney SHERWOOD, who had already filed in the trial court
2 requests for the clerk’s record and reporter’s record on July 23, notified
court reporter Angela Chambers by email on July 24, 2015 that attorney
Amber Vasquez Bode had been hired to represent appellant in this appeal,
and Ms. Chambers confirmed receiving that information in a July 25, 2015
reply email, stating that she would contact Ms. Bode regarding payment
information for the reporter’s record.
On July 27, 2015, attorney SHERWOOD spoke with Ms. Bode in one
of the elevators at the Travis County Courthouse about this case. Ms. Bode
confirmed that she had been hired to represent appellant in this appeal.
Attorney SHERWOOD informed Ms. Bode that he had signed the Agreed
Motion to Substitute Counsel and emailed it back to her office on July 24.
As a result of this conversation, attorney SHERWOOD closed his file on this
matter, thinking that the Agreed Motion to Substitute Counsel would be
filed, he submitted a voucher for $232.06 to Travis County, and has received
payment of $232.00.
On August 7, 2015, this court issued a notice to the Travis County
District Clerk that a supplemental record should be filed containing the order
appointing attorney SHERWOOD in this appeal. That letter was addressed
to the District Attorney’s office, attorney SHERWOOD, attorney Amber
3 Vasquez Bode, and trial attorney Richard Jones. On August 18, 2015, this
court issued a letter addressed only to the District Attorney’s office and to
attorney SHERWOOD, with no mention of attorneys Bode or Jones, stating
that the supplemental clerk’s record had been filed, and that the docketing
statement was overdue and needed to be filed immediately. In response to
this letter, attorney SHERWOOD e-filed in the evening of August 18, 2015
an August 19, 2015 letter addressed to this court’s clerk’s office explaining
that he had been informed by Ms. Bode that she was the retained attorney for
appellant, that an Agreed Motion to Substitute Counsel had been sent by Ms.
Bode to attorney SHERWOOD, which was signed and returned to her office
(with a copy of that motion attached to that Aug. 19 letter), and that attorney
SHERWOOD had closed his file on this matter and was no longer
representing appellant since attorney Amber Vasquez Bode had been hired
as appellant’s attorney on appeal.
After e-filing this letter, attorney SHERWOOD reviewed the Travis
County AMP system to see if the attached Agreed Motion to Substitute
Counsel was ever filed with the District Clerk’s office. There is no entry on
the docket sheet that the motion has ever been filed. This writer does not
know whether it was ever filed, if it was ever presented to the trial court, or
4 whether it was ever acted upon.
As a result, it appears that this court still considers attorney
SHERWOOD counsel of record for appellant, even though attorney Amber
Vasquez Bode stated to this court in her July 23, 2015 Motion for Leave to
File Out of Time that, “On July 22, 2015, Appellant hired new counsel,
Amber Vasquez Bode . . . .” Since it is unclear why the attached Agreed
Motion to Substitute Counsel has not been ruled upon by the trial court,
attorney SHERWOOD moves this court to remand this case to the trial court
for a determination of whether attorney Amber Vasquez Bode has been hired
as appellant’s attorney in this appeal, and for entry of an order substituting
her as counsel for appellant in this appeal and permitting attorney
SHERWOOD to withdraw as appointed counsel in this appeal.
WHEREFORE, PREMISES CONSIDERED, attorney SHERWOOD
prays that this court, upon notice and opportunity to be heard by the State or
by retained attorney Amber Vasquez Bode, grant this motion and remand
this case to the trial court for a hearing to determine whether Amber
Vasquez Bode has been hired to represent appellant in this appeal, and to
enter appropriate orders designating the attorney for appellant in this appeal.
5 Respectfully submitted, /s/ Gregory Sherwood GREGORY SHERWOOD ATTORNEY P.O. Box 200613 Austin, Texas 78720-0613 (512) 484-9029 State Bar No. 18254600
APPOINTED ATTORNEY FOR APPELLANT JOHN GABRIEL ESQUIVEL
CERTIFICATE OF SERVICE
I hereby certify that a true copy of this document was served by email on August 19, 2015 upon the Travis County District Attorney’s Office, 509 W. 11 th Street, 2 nd Floor, Austin, Texas 78701 at its email address: AppellateTCDA@traviscountytx.gov, and by email upon the retained attorney for appellant, Amber Vasquez Bode at her email address: amberv@lawyers.com. /s/ Gregory Sherwood Gregory Sherwood
Certification of Compliance
According to the WordPerfect program used to create this document, there are 1,122 words in this document. /s/ Gregory Sherwood Gregory Sherwood
6 CAUSE NO. 0-1-DC-14-301500 ) STATE OF TEXAS ) 299 111 ) ) DIST RI CT COU RT ) VS. ) ) ) TRA VTS COUNTY. TEXAS JOHN ESQU IVEL ) Defendant )
AGREED MOTION TO SUBSTITUTE COUN S EL
TO THE HONORABLE JUDGE OF SAID COU RT:
NOW CO MES JOHN ES QUIVEL, Defendant in the above sty led causes, and would show the Co urt as fo ll ows:
The Defendant wishes to substitute co unse l. Gregory Sherwood currentl y represe nts Defenda nt as Attorney of
Reco rd. Defendant wishes to substitute the fo ll owing co unsel, Amber Vazquez Bode. Undersigned co unse l has
co ntacted Gregory Sherwood and he has no objecti on to thi s moti on, as ev idenced by hi s signature below.
WHEREFORE, PREMISES CONSJD ERED, Defendant prays that the Court all ow the Substituti on of Counse l.
and Amber Vazquez Bode be the attorney of record, as set fo rth herei n.
Dated: .Jul y 24,20 15
Respectfull y submitted, Agreed: -H----1---=-,~~----"c~-- G egory 1erwood State Bar No. : 18254600 P.O. Box 2006 13 Aust in, Texas 78720-06 13 Amber Vazquez Bode emaiI: gsherwood@mail.com Vazquez Law Firm 1004 West Ave. Austin , Texas 7870 I 5 12-220-8507 office 512-480-0760 facs imil e Texas Bar Number 24039225
CERTIFICATE OF SERVIC E Thereby certi fy that a true copy of the above Moti on to Substi tute Co unse l has, on thi s 24 111 day of .Jul y 20 15, been sent to:
Grego ry Sherwood GS herwood@mail.com