John Stephens v. State

• Court: Court of Appeals of Texas
• Decided: January 25, 2008
• Docket: 07-07-00434-CR
• Status: Published

Opinion

NO. 07-07-0434-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 25, 2008

______________________________

JOHN STEPHENS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 140^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2005-411195; HONORABLE JIM BOB DARNELL, JUDGE _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER ON MOTION TO SUBSTITUTE COUNSEL ON APPEAL

Pending before the court is a motion filed by attorney Mike Brown seeking a substitution of counsel and a withdrawal of appointed counsel for appellant, John Stephens.

A review of the clerk's record reveals that, after appellant's conviction and imposition of sentence, the trial court determined that appellant sought to appeal this case, was too poor to employ counsel, and that no attorney was representing appellant on appeal. The clerk's record shows that the trial court appointed Erika Copeland to represent appellant on appeal on October 11, 2007.

On December 14, 2007, this court received a motion from Brown titled Motion to Substitute Counsel on Appeal requesting this court to substitute Brown for Copeland and further requested this court to allow Copeland to withdraw from this case. The motion now pending before this court is not signed by appellant or his appointed counsel. The motion does not cite or discuss any authority governing the appointment or substitution of counsel. Our disposition of this motion must be made in accordance with the applicable statutes and procedural rules.

We initially note Rule of Appellate Procedure 6.1(a) provides that the attorney whose signature first appears on the notice of appeal shall be the lead counsel unless another attorney is so designated. Although appellant's trial attorney signed the notice of appeal, the docketing statement filed with this court pursuant to Rule of Appellate Procedure 32.2 lists Copeland as the attorney of record on appeal. Therefore, we conclude that the appointed counsel, Erika Copeland, is appellant's lead counsel.

Article 26.04 controls the procedures for appointment of counsel in criminal cases. Tex. Code Crim. Proc. Ann. art. 26.04 (Vernon Supp. 2007). The statute provides that appointment of counsel shall be made by the trial court and further specifies the events which will terminate appointed counsel's obligations. Under Article 26.04(j)(2), appointed counsel shall represent the defendant "until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel after a finding of good cause is entered on the record." Id. The Waco Court of Appeals has taken the position that the phrase "the court" in Article 26.04 means the trial court and only that court may relieve appointed counsel. See Enriquez v. State, 999 S.W.2d 906, 907 (Tex.App.-Waco 1999, no pet.) (construing former version of Article 26.04). We have recognized a trial court's continuing control over appointment of counsel on several occasions, but have declined to find that control precludes our granting of motions to withdraw by counsel certifying an appeal is without merit. See Hudspeth v. State, 31 S.W.3d 409, 412 (Tex.App.-Amarillo 2000, pet. ref'd).

The Waco court considered a motion substantially similar to that now before us in Bonner v. State, 29 S.W.3d 360 (Tex.App.-Waco 2000, pet. ref'd). That court found the motion met the requirements of Rule of Appellate Procedure 6.2 authorizing the filing of a notice of appearance by an attorney other than lead counsel, and granted the motion to that extent. Id. at 361. The court declined to substitute the new counsel as lead counsel because the motion failed to comply with Rule of Appellate Procedure 6.1(c), requiring notice of new lead counsel to be signed by the new counsel and either the party or former lead counsel. Id. The court went on to hold such a designation would not relieve appointed counsel of his continuing duties, adhering to its view that only the trial court has the power to relieve appointed counsel. Id.

We find the Bonner analysis of Rules of Appellate Procedure 6.1(c) and 6.2 helpful in disposition of the motion before us. The appearance of Brown shall be noted on our docket, but we shall continue to show appellant's appointed counsel as lead counsel. Because appointed counsel has not requested to be relieved of her continuing obligations to appellant, we need not address that issue. The trial court retains authority over the appointment of counsel for appellant. Enriquez, 999 S.W.2d at 908. Any request for clarification of appointed counsel's continuing role in this appeal under these circumstances is properly directed initially to the trial court. Appellant is directed to supplement the appellate record with the appropriate documentation of any further action taken by the trial court with respect to appointed counsel.

The appearance of attorney Mike Brown shall be noted on the docket by the clerk of this court. The remainder of the motion is denied.

Per Curiam

Do not publish.

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NO. 07-11-00303-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 30, 2011

JAY ANTHONY NOTTINGHAM, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

NO. 4416; HONORABLE H. BRYAN POFF, JR., JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

            Appellant Jay Anthony Nottingham filed a notice of appeal from his conviction of the offense of attempt to take a weapon from an officer[1] and his resulting sentence of eighteen years of imprisonment.  While a clerk’s record has not yet been filed, the trial court clerk has provided us with certified copies of certain documents.  We have before us copies of the certification of defendant’s right of appeal, and a “waiver of appeal,” both apparently bearing appellant’s signature.  The certification of defendant’s right of appeal, executed by the trial court and signed by appellant and his trial counsel, states that the case “is a plea-bargain case, and the defendant has NO right of appeal.”  The “waiver of appeal” requests the trial court to order appellant’s transfer to the Institutional Division of the Department of Criminal Justice to serve the sentence imposed by the court.  That document bears the notarized signature of appellant, and the signature of the trial court, approving appellant’s request.  The documents provided us by the clerk also include a copy of written plea admonishments, including a section entitled “defendant’s waivers and statement on admonishments,” also signed by appellant and his counsel, which contains the statement “I waive any right to appeal I may have in this case.”  Finally, the court’s judgment contains the special finding that appellant “signed a waiver of appeal.”  The judgment describes the terms of the plea bargain to include an eighteen-year sentence of confinement and the State’s agreement to waive its motion to cumulate sentences.  The judgment is consistent with those terms.  All the documents provided us by the trial court clerk are dated and were filed on June 20, 2011, the date of appellant’s guilty plea and sentencing.

            By letter dated August 3, 2011, we notified appellant of this documentation and informed him that the appeal is subject to dismissal unless, by August 18, we received an amended certification illustrating appellant has the right to appeal or appellant otherwise demonstrates other grounds for continuing the appeal.

            Appellant has submitted a response, but it does not contain an amended certification establishing his right to appeal.  In his response, appellant asserts the certification provided us is defective because his counsel filed a pretrial motion to dismiss the prosecution for failure to provide him a speedy trial, and the trial court denied the motion.  He asserts he is entitled to appeal that denial.  As appellant acknowledges, the trial court could have certified his entitlement to appeal the denial of his pretrial motion, but did not.  Comparing the trial court’s certification with the documents before us, we cannot agree that the certification is defective.  The documents before us, on the contrary, support the trial court’s certification appellant has no right of appeal.  See Dears v. State, 154 S.W.3d 610, 614-15 (Tex.Crim.App. 2005) (appellate court obligated to compare certification with record before it).  Accordingly, we dismiss the appeal.  Tex. R. App. P. 25.2(d); Chavez v. State, 183 S.W.3d 675, 680 (Tex.Crim.App. 2006) (court of appeals must dismiss prohibited appeal without further action). 

                                                                                                James T. Campbell

                                                                                                            Justice

Do not publish.

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[1] Tex. Penal Code Ann. § 38.14 (West 2010).