TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Bobby Mitchell, Appellant
v.
The State of Texas, Appellee
NO. 2001-155, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
This is a contempt proceeding ancillary to Bobby Mitchell's appeal from a judgment of conviction for sexual assault and indecency with a child. The subject of this proceeding is M. Engin Derkunt, appellant's counsel.
Counsel signed appellant's notice of appeal, which was filed on September 16, 2002. See Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003) (counsel who signs notice of appeal effectively "volunteers" to serve as appellate counsel). His brief was due December 23, 2002. In response to the clerk's notice that his brief was overdue, counsel informed the Court that he filed the notice of appeal with the understanding that appellant would either pay him for the appeal or retain alternate counsel. Counsel did not seek to withdraw nor did he assert that appellant is indigent. On February 11, 2003, the Court ordered counsel to file a brief on appellant's behalf no later than March 24, 2003. Counsel failed to file a brief as ordered. Instead, he tendered a motion to withdraw the notice of appeal. The motion did not comply with the appellate rules because it was not signed by appellant. Tex. R. App. P. 42.2(a). Counsel did not respond to the clerk's notification of this defect and the motion was overruled.
Counsel was ordered to appear in person before this Court on May 21, 2003, to show cause why he should not be held in contempt and sanctions imposed for his failure to obey the February 11, 2003, order of this Court. On the day before the show-cause hearing, counsel filed a new motion to withdraw notice of appeal. Although still not signed by appellant, the motion was accompanied by a copy of a letter signed by appellant containing this sentence: "At this time I will not go forward with my appeal." Elsewhere in the letter, however, appellant asserts his innocence of the crimes for which he was convicted. The motion also reflects a misconception that the appeal may be "re-filed" at a later date.
Counsel appeared at the show-cause hearing as ordered. He offered no excuse for his failure to file a brief.
We find that the said M. Engin Derkunt is in contempt of this Court for having disregarded the order to file a brief on appellant's behalf. By abandoning appellant's appeal, he has also rendered ineffective assistance to his client.
Appellant's second motion to withdraw notice of appeal is dismissed. The appeal is abated and the cause remanded to the district court. The court is ordered to promptly conduct a hearing to determine whether appellant desires to prosecute this appeal. Tex. R. App. P. 38.8(b)(2). If appellant desires to prosecute this appeal but is indigent, the court shall appoint substitute counsel who will effectively represent appellant on appeal. A record from this hearing, including copies of all findings and orders and a transcription of the court reporter's notes, shall be forwarded to the Clerk of this Court for filing as a supplemental record no later than June 27, 2003. Id., rule 38.8(b)(3). The appeal will be returned to the active docket upon receipt of the supplemental record.
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W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Filed: May 22, 2003
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