Leonard Mike Penley v. State

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00462-CR

Leonard Mike Penley, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT NO. 67031, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

Retained counsel for appellant Leonard Mike Penley has filed with this Court

a motion to withdraw as appellate counsel for Penley. Counsel represents that Penley has not

employed counsel to represent him on appeal and requests that this Court “appoint an attorney to

represent Defendant in his appeal in this case, because he is indigent and cannot afford to employ

counsel.” Counsel further represents that Penley “does not have an Affidavit of Indigence on file.”

If Penley is indeed indigent, he is entitled to the appointment of counsel on appeal.1

But only the trial court is authorized to make a determination of indigency and appoint counsel

for appellant under these circumstances.2 Therefore, we refer counsel’s motion to withdraw to the

1 See Douglas v. California, 372 U.S. 353, 355-58 (1963); Cooks v. State, 240 S.W.3d 906, 910 (Tex. Crim. App. 2007). 2 See Tex. Code Crim. Proc. art. 26.04. district court, abate the appeal, and remand the cause to the district court to hold a hearing in

accordance with rule 38.8 of the rules of appellate procedure.3 If Penley is indigent, the district court

shall make appropriate orders to ensure that Penley is adequately represented on appeal.4 Following

the hearing, the district court shall order the appropriate supplemental clerk’s and reporter’s records

to be prepared and forwarded to this Court no later than December 1, 2014.5

It is ordered October 29, 2014.

Before Justices Puryear, Pemberton, and Field

Abated and Remanded

Filed: October 29, 2014

Do Not Publish

3 See Tex. R. App. P. 38.8(b)(2), (3). 4 See id. 5 See id. Contemporaneous with his motion to withdraw, counsel has also filed a motion for extension of time to file appellant’s brief. We dismiss that motion as moot. Appellant’s brief shall be due thirty days after the appeal is reinstated in this Court.