Kevin Edward Martin v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 5, 2024
• Docket: 03-24-00137-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00137-CR

Kevin Edward Martin, Appellant

v.

The State of Texas, Appellee

FROM THE 20TH DISTRICT COURT OF MILAM COUNTY NO. CR27,644, THE HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

The reporter’s record in this appeal was due for filing in this Court on

April 24, 2024. On April 11, 2024, the court reporter informed us that the record had not been

requested. On May 1, 2024, we ordered appellant through his appointed counsel to provide

written verification that a request for preparation of the reporter’s record had been made and

advised that if the verification were not received, we would consider the appeal without the

reporter’s record. To date, no response has been received, and the reporter’s record has not

been filed.

Further, the clerk’s record in this appeal was due on April 29, 2024, and on

May 7, 2024, we received a status report from the trial court clerk stating that appointed counsel

had not contacted the clerk’s office to proceed with the appeal. On May 7, 2024, we sent a letter

to counsel ordering appellant to provide us with either written verification that arrangements for the clerk’s record had been made or written documentation that appellant has been found

indigent. We also informed appellant that failure to comply with the order could result in

dismissal of the appeal for want of prosecution. See Tex. R. App. P. 37.3(b). As with our order

regarding the reporter’s record, no response or record has been received.

The District Clerk’s Information Sheet reflects that appellant has been appointed

counsel on appeal. Counsel has not filed a motion to withdraw.

In criminal proceedings, an indigent defendant is entitled to have an attorney

appointed to represent him on appeal. Tex. Code Crim. Proc. art. 1.051(d)(1). Additionally, an

indigent defendant is entitled to a free record on appeal. See Tex. R. App. P. 20.2. The

Legislature has given the trial court the responsibility of appointing counsel in criminal

proceedings. Tex. Code Crim. Proc. arts. 1.051(d), 26.04(j)(2). When counsel is appointed by a

trial court to represent an indigent defendant on appeal, it is generally the trial court’s

responsibility to relieve or replace counsel. See Enriquez v. State, 999 S.W.2d 906, 907 (Tex.

App.—Waco 1999, no pet.); Williamson v. State, No. 13–12–00672–CR, 2013 WL 363677, at *1

(Tex. App.—Austin Jan. 25, 2013, no pet.) (mem. op., not designated for publication).

Accordingly, the appeal is abated and remanded to the trial court, which shall

conduct a hearing to determine whether appellant desires to prosecute this appeal, whether

appellant is indigent, and, if so, whether counsel has abandoned this appeal. The court shall

make appropriate written findings and recommendations. See Tex. R. App. P. 37.3(a)(2)

(appellate court must make whatever order is appropriate to avoid further delay and preserve

parties’ rights when record has not been timely filed); id. R. 35.3(c) (appellate court must allow

record to be filed late when delay is not appellant’s fault). If necessary, the court shall appoint

substitute counsel to represent appellant in this appeal. See id. R. 38.8(4) (appellate court may

2 act appropriately to ensure appellant’s rights are protected when appellant is represented by

counsel). Following the hearing, which shall be transcribed, the trial court shall order the

appropriate supplemental clerk’s and reporter’s records—including all findings and orders—to

be prepared and forwarded to this Court no later than July 8, 2024.

It is so ordered June 5, 2024.

Before Chief Justice Byrne, Justices Smith and Theofanis

Abated and Remanded

Filed: June 5, 2024

Do Not Publish