Joseph Ray Melton v. State

• Court: Court of Appeals of Texas
• Decided: October 30, 2020
• Docket: 10-20-00018-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

Nos. 10-20-00010-CR, 10-20-00011-CR, 10-20-00012-CR, 10-20-00013-CR, 10-20-00014-CR, 10-20-00015-CR. 10-20-00016-CR, 10-20-00017-CR, 10-20-00018-CR, and 10-20-00019-CR

JOSEPH RAY MELTON, Appellant v.

THE STATE OF TEXAS, Appellee

From the County Court at Law Navarro County, Texas Trial Court Nos. C34324-CR, C34325-CR, C34326-CR, C34327-CR, C34328-CR, C34329-CR, C34330-CR, C34331-CR, C34332-CR, and C34333-CR

ABATEMENT ORDER

The Clerk of this Court notified appellant by letter dated August 5, 2020, that the

reporter's record in these cases had not been filed because appellant had failed to request

that it be prepared. Appellant was given 21 days to request the reporter’s record and simultaneously notify the Court that it was requested. The Clerk warned appellant in the

same letter that if the reporter’s record was not requested within 21 days, the appeals

would proceed on the clerk’s record alone. See TEX. R. APP. P. 37.3(c)(1). When more than

21 days passed and no record was requested, the Clerk of this Court notified appellant

by letter dated August 28, 2020, that the appeals would be submitted on the clerk’s record

alone and that appellant’s briefs were due 30 days from the date of the letter.

On September 25, 2020 and September 28, 2020, appellant filed a motion for

extension of time to file his briefs and a motion for leave to request the reporter’s record,

respectively. In an order issued on October 1, 2020, we granted the motion for leave to

request the reporter’s record and dismissed the motion for extension of time to file

appellant’s briefs as premature. We also ordered appellant to request the reporter’s

record and simultaneously notify the Court that the request had been made within 21

days from the date of the October 1, 2020 order. More than 21 days have passed, and we

have not been notified whether the reporter’s record has been requested.

We also addressed in the October 1, 2020 order the Court’s concerns for counsel as

well as the representation of appellant and informed appellant that in past situations

where this Court has become concerned that the rights of the appellant cannot be

adequately protected due to injury or illness of appointed counsel, we have abated the

appeal and remanded the proceeding to the trial court with instructions to determine if

additional counsel or other counsel should be appointed to represent an appellant.

We understand that counsel has done everything within her ability that her

personal situation will allow to represent the client that she was appointed to represent,

Melton v. State Page 2 but that under the circumstances, it is necessary that the client and the trial court that

made the appointment be involved in the decision of whether it is time for additional

counsel or substitute counsel to be appointed. Moreover, we note that only in rare

instances may appointed counsel be removed over the objection of the client. See In re

Fletcher, 584 S.W.3d 584, 589-590 (Tex. App.—Houston [1st Dist.] 2019, orig. proceeding).

Accordingly, this appeal is ABATED to the trial court to hold a hearing to

determine whether appointed counsel is able to fulfill her duties and obligations to this

appellant, whether appellant is receiving effective assistance of counsel, and if not,

whether to appoint new or additional counsel to represent appellant effectively. The trial

court is ordered to hold such hearing, either in person or virtually, within 35 days from

the date of this order. A supplemental clerk’s record containing the trial court’s written

determination must be filed within 42 days from the date of this order.

PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Neill Appeal abated Order issued and filed October 30, 2020 [RWR]

Melton v. State Page 3