COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Tristan Omarr Armstrong v. The State of Texas
Appellate case number: 01-14-00560-CR
Trial court case number: 2013CR5695
Trial court: 226th Judicial District Court of Bexar County
On May 29, 2014, appellant was convicted after a jury trial of the felony offense
of evading arrest/detention with a vehicle for which he received a sentence of two years
confinement, but has since been released on bond. The trial court found appellant
indigent and appointed Michael Scott Zimmerer to represent him on appeal. On June 6,
2014, appellant’s counsel timely filed a notice of appeal. On July 1, 2014, pursuant to the
Texas Supreme Court’s equalization order, signed June 23, 2014, this appeal was
transferred to this Court.
On August 4, 2014, counsel filed an unopposed motion to withdraw as appointed
appellate counsel in the trial court alleging that Rule 1.06 of the Texas Disciplinary Rules
of Professional Conduct prohibits his representation because he is married to an Assistant
District Attorney in the Appellate Section of the Bexar County District Attorney’s Office.
The motion requests that this Court grant counsel’s withdrawal and order the trial court to
appoint substitute counsel for appellant. Counsel further contends that no prejudice will
occur to appellant if this motion is granted because there are no pending deadlines since
neither the clerk’s or reporter’s record have been filed and appellant’s signature shows
his consent to this motion to withdraw. See TEX. R. APP. P. 6.5(a)(1), (3), (4).
An appellant has a right to counsel on direct appeal from a criminal conviction.
See Buntion v. Harmon, 827 S.W.2d 945, 948 (Tex. Crim. App. 1992); see also TEX.
CODE CRIM. PROC. ANN. art. 1.051(a) (West Supp. 2013). Further, because appellant
was found indigent by the trial court and the record contains no evidence that appellant’s
financial circumstances have changed, appellant is entitled to court-appointed counsel.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1), 26.04(p); Ward v. State, 740 S.W.2d
794, 798 (Tex. Crim. App. 1987); Lopez v. State, 486 S.W.2d 559, 560 (Tex. Crim. App.
1972); Fowler v. State, 874 S.W.2d 112, 114 (Tex. App.—Austin 1994, order, pet. ref’d).
We, therefore, abate this appeal and remand the cause to the trial court for further
proceedings. On remand, the trial court shall conduct a hearing at which a representative
of the Bexar County District Attorney’s Office and appellant’s counsel, Michael Scott
Zimmerer, shall be present. Appellant shall also be present for the hearing in.1
We direct the trial court to:
1) Determine whether appellant still wishes to pursue this appeal;
2) Admonish appellant regarding the dangers and disadvantages of self-
representation, including admonishments regarding the wisdom and
practical consequences of self-representation and that there are rules of
appellate procedure that appellant will be obligated to follow and that he
will not be granted any special consideration because of his lack of formal
training in law;
3) Determine whether appellant intends and has the resources to hire counsel;
a. If so, provide a deadline by which appellant must hire counsel,
which shall be no more than 30 days from the date of the hearing;
b. If not, appoint counsel to represent appellant on appeal;
4) At the conclusion of the hearing, the trial court shall discharge counsel
Michael Scott Zimmerer from representation of appellant in this appeal;
5) Make any other findings and recommendations the trial court deems
appropriate; and
6) Issue written findings of fact, conclusions of law, and recommendations as
to these issues, separate and apart from any docket sheet notations.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f); 26.04(j)(2), (p); Ward,
740 S.W.2d at 798; Lopez, 486 S.W.2d at 560; Fowler, 874 S.W.2d at 114; cf. TEX. CODE
CRIM. PROC. ANN. art. 1.051(g).
The trial court shall have a court reporter, or court recorder, record the hearing. A
supplemental clerk’s record containing any findings, recommendations, and orders of the
1 On request of appellant, appellant and his counsel shall be able to communicate
privately without being recorded or heard by the trial court or the attorney
representing the State.
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trial court made pursuant to this order shall be sent to this Court no later than 30 days
from the date of this order. See TEX. R. APP. P. 34.5(c). If the hearing is conducted by
video teleconference, an electronic copy of the hearing shall be filed in this Court no later
than 30 days from the date of this order.
The appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket when records
that comply with our order are filed with the Clerk of this Court. The court coordinator
of the trial court shall set a hearing date and notify the parties.
It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes
Acting individually Acting for the Court
Date: August 19, 2014
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Tristan Omarr Armstrong v. State
Combined Opinion