Kelor King v. State

• Court: Court of Appeals of Texas
• Decided: January 7, 2016
• Docket: 01-15-00237-CR
• Status: Published

Opinion

Opinion issued January 7, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00237-CR ——————————— KELOR KING, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1437649

MEMORANDUM OPINION

Appellant, Kelor King, pleaded guilty to the second-degree felony offense of

assault of family member—second offender and impeding breathing, for which the

trial court deferred adjudicating his guilt and placed him on deferred adjudication

community supervision for six years on September 30, 2014. See TEX. PENAL CODE ANN. §§ 12.33(a), 22.01(b-1) (West Supp. 2015); TEX. CODE CRIM. PROC. ANN. art.

42.12, § 5(a) (West Supp. 2015). On February 18, 2015, after appellant pleaded true

to the allegations that he had violated the terms and conditions of his probation in

the State’s motion to adjudicate his guilt, the trial court assessed appellant’s

punishment at five years’ confinement. See TEX. CODE CRIM. PROC. ANN. art. 42.12,

§ 5(b). The trial court certified that appellant had the right of appeal because this

was not a plea-bargain case. See TEX. R. APP. P. 25.2(a)(2)(B).

On February 25, 2015, appellant timely filed a pro se notice of appeal from

the judgment adjudicating guilt, and, on March 2, 2015, the trial court appointed

Keisha Smith to represent appellant. See TEX. R. APP. P. 26.2(a)(1). Because the

clerk’s record, filed on April 17, 2015 in this Court, did not contain any order

showing that Smith had been discharged by the trial court, it appeared that she

continued to represent appellant. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2)

(West Supp. 2015) (requiring appointed attorney to “represent the defendant until

charges are dismissed, the defendant is acquitted, appeals are exhausted, or the

attorney is permitted or ordered by the court to withdraw as counsel for the defendant

after a finding of good cause is entered on the record”). Consequently, on August 6,

2015, the Court construed appellant’s first pro se request to withdraw appeal, filed

on July 27, 2015, as a motion to dismiss the appeal and dismissed the motion without

2 prejudice to refiling because it lacked his counsel’s signature. See TEX. R. APP. P.

42.2(a).

On September 14, 2015, appellant filed a second pro se request to withdraw

appeal, again stating that he did not wish to prosecute his appeal and requesting

withdrawal of his notice of appeal. See TEX. R. APP. P. 42.2(a). On September 22,

2015, this Court similarly dismissed without prejudice appellant’s second pro se

request to withdraw appeal, construed as a motion to dismiss, because that motion

also was not signed by his counsel. See id.1

Also on September 22, 2015, this Court abated this case for a late-brief

abatement hearing because appellant’s counsel, Smith, had failed to timely file a

brief. See TEX. R. APP. P. 38.8(b)(2). On October 30, 2015, the trial clerk filed a

supplemental clerk’s record in this Court including, among other documents, the trial

court’s order, signed on April 23, 2015, granting Smith’s motion to withdraw as

appellant’s appellate counsel, which was not included in the clerk’s record.

Thus, the Court construes appellant’s third pro se request to withdraw appeal,

filed in duplicate on September 14, 2015, as a motion to dismiss the appeal filed in

compliance with Texas Rule of Appellate Procedure 42.2(a) because it was signed

by appellant after the trial court had permitted his appellate counsel to withdraw.

1 Appellant filed two pro se requests to withdraw his appeal on September 14, 2015, with the second one marked by the Clerk of this Court as a duplicate, but this Court’s September 22, 2015 Order dismissed only one of those motions. 3 See TEX. R. APP. P. 42.2(a). Furthermore, on November 18, 2015, the court reporter

filed in this Court a supplemental reporter’s record of the abatement hearing, held

by the trial court on October 30, 2015, in which the pro se appellant confirmed on

the record in open court that he did not wish to pursue his appeal and requested

withdrawal. Although appellant’s motion to dismiss does not contain a certificate

of conference, this motion has been on file with the Court for more than ten days

with no response, and no opinion has issued. See id. 10.3(a), 42.2(a).

Accordingly, we direct the Clerk of this Court to reinstate this appeal, grant

the appellant’s motion, filed on September 14, 2015, and dismiss the appeal. See

TEX. R. APP. P. 42.2(a), 43.2(f). We dismiss any other pending motions as moot.

PER CURIAM Panel consists of Justices Jennings, Keyes, and Bland. Do not publish. TEX. R. APP. P. 47.2(b).