Kenneth Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: October 5, 2011
• Docket: 03-10-00863-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00863-CR

Kenneth Hernandez, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. D-1-DC-09-500100, HONORABLE BOB PERKINS, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant filed his notice of appeal in the trial court on December 16, 2010, the

completed appellate record was filed on July 11, 2011, and, after one motion for extension of time

was granted, appellant’s brief was due on September 26, 2011. On September 19, appellant’s

appointed attorney filed a second motion for extension of time to file appellant’s brief and a

motion to withdraw as counsel, explaining that he was seeking to withdraw because a policy change

had capped non-capital appellate attorney’s fees at $2,000. Counsel asserts that compensation

under the current fee schedule “is grossly inadequate and will result in the provision of substandard

representation on appeal” and violates the code of criminal procedure’s requirement that appointed

counsel should be paid a reasonable fee based on the time and labor required, complexity of

the case, and counsel’s experience and ability. See Tex. Code Crim. Proc. Ann. art. 26.05(a) (West Supp. 2010). Counsel has also stated that he will be asking the Office of Court

Administration to remove his name from the appointment list for non-capital appeals.

The appeal is therefore abated. The trial court shall conduct a hearing on counsel’s

motion to withdraw, appoint new counsel, if appropriate, and make appropriate findings and

recommendations. A supplemental record from this hearing, including copies of all findings and

orders and a transcription of the court reporter’s notes, should be forwarded to the clerk of this Court

no later than November 14, 2011. See Tex. R. App. P. 38.8(b)(3).

__________________________________________

David Puryear, Justice

Before Justices Puryear, Rose and Goodwin

Abated

Filed: October 5, 2011

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