Ruben Alonzo v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 15, 2024
• Docket: 03-23-00794-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00794-CR

Ruben Alonzo, Appellant

v.

The State of Texas, Appellee

FROM THE 331ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1-DC-21-301358, THE HONORABLE BOB PERKINS, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

Appellant Ruben Alonzo filed a notice of appeal from his conviction for sexual

assault. By letter dated April 16, 2024, this Court’s clerk sent a notice of late brief to appellant

through appellant’s appointed counsel, Gary Prust. On April 24, 2024, Prust, filed a motion to

withdraw as appellate counsel. In the motion, Prust asserts that Alonzo wishes to represent

himself pro se on appeal as he did at trial, but that Alonzo refused to sign Prust’s motion to

withdraw as counsel.

Indigent defendants are entitled to the appointment of counsel on appeal. Cooks

v. State, 240 S.W.3d 906, 910 (Tex. Crim. App. 2007). 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).

Defendants are not entitled to hybrid representation—i.e. Alonzo cannot both

represent himself and retain his appointed counsel by refusing to agree that his appointed

attorney can withdraw. See Scheanette v. State, 144 S.W.3d 503, 505 n.2 (Tex. Crim. App.

2004) (citing Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995)).

Accordingly, we abate the appeal and remand the cause to the trial court to hold a

hearing in accordance with rule 38.8 of the Texas Rules of Appellate Procedure. See Tex. R.

App. P. 38.8(b)(2), (3). Upon remand, counsel is instructed to refile his motion to withdraw with

the trial court. The trial court shall hold a hearing concerning whether Alonzo still wishes to

prosecute his appeal and, if so, whether to grant Prust’s motion to withdraw, to appoint new

counsel, or to allow Alonzo to proceed pro se after appropriate discussion about self-

representation. The trial court shall make appropriate orders to ensure that Alonzo is represented

on appeal or can proceed pro se.

A record of the hearing, including copies of all findings and any orders, shall be

forwarded to the Clerk of this Court for filing as a supplemental record no later than June 18,

2024. See Tex. R. App. P. 38.8.

It is ordered May 15, 2024.

Before Chief Justice Byrne, Justices Smith and Theofanis

Abated and Remanded

Filed: May 15, 2024

Do Not Publish