IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 20, 2004
______________________________IN THE INTEREST OF T.R.M. AND H.S.M., CHILDREN
_________________________________
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
NO. 31036; HONORABLE LEE WATERS, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINIONAppellant Shannon Luster, appearing pro se, filed with the District Clerk of Gray County, in Cause No. 31036 pending in the 223rd District Court of that county, a document entitled Texas Rule of Civil Procedure 306a(5) Motion. The District Clerk forwarded the motion to this court, considering that it could be interpreted as a bona fide attempt to invoke this court's jurisdiction. See Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997). While the motion did not meet the requirements for a notice of appeal, it contained a notation "Notice of Appeal" at the bottom of each page. The relief requested in the motion was of a nature to be addressed by the trial court, not an appellate court. The motion did not state the date of the judgment or order appealed from or state clearly that appellant desired to appeal. Tex. R. App. Proc. 25.1(d). Additional information from the District Clerk indicated that no appealable order of the type referred to in the motion had been entered by the trial court in that cause number, and further indicated that the trial court had addressed the relief expressly requested in the motion.
The motion was received by this court on March 11, 2004. By letter dated March 26, 2004, the clerk of this court directed appellant to file, within ten days, a response stating the date of the judgment or order appealed from and containing the information required by Rule 25.1(d) of the Texas Rules of Appellate Procedure. Appellant was advised that failure to respond could result in dismissal of the appeal. See Tex. R. App. P. 42.3. That date has passed and no response has been received.
All parties have had more than ten days' notice that dismissal could result from appellant's failure to comply with the rules and this court's orders. Tex. R. App. Proc. 42.3(c). Accordingly, the appeal is dismissed.
James T. Campbell
Justice
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NO. 07-10-00281-CR, 07-10-00282-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 10, 2010
JAMICHEAL LAMARR HILL, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY;
NO. 1128038D, 1165716D; HONORABLE GEORGE W. GALLAGHER, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ORDER OF ABATEMENT AND REMAND
Through two cases on appeal, appellant Jamicheal Hill challenges the judgments of the trial court. On a finding that appellant lacked the means to employ appellate counsel, the trial court appointed William H. Bill Ray to represent him on appeal. In both cases, Mr. Ray filed a motion to withdraw from representation supported by an Anders brief.[1] Because appellant has not yet had an opportunity to file a pro se response to the Anders brief, we have taken no action on Mr. Rays request to withdraw.[2] On August 2, 2010, attorney Mark D. Scott filed a short document in this court entitled notice of attorney. By the document, Mr. Scott states he has been retained to represent appellant in his two appeals.[3] Although the document contains a certificate reflecting service on the Tarrant County Criminal District Attorney, neither the document nor Mr. Scotts cover letter to our clerk indicates that Mr. Ray was provided a copy.
The trial court is responsible for appointing counsel to represent indigent defendants, Tex. Code Crim. Proc. Ann. art. 1.051(d) (Vernon Supp. 2009), and possesses the authority to relieve or replace appointed counsel on a finding of good cause. Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (Vernon Supp. 2009). See Meza v. State, 206 S.W.3d 684 (Tex.Crim.App. 2006). Under some circumstances, it is appropriate for the trial court to exercise the authority to appoint or substitute counsel, even after the appellate record has been filed. Id. at 688. Notwithstanding the notice filed by Mr. Scott, Mr. Ray remains appellants counsel on appeal until charges are dismissed, the defendant is acquitted, appeals are exhausted, or [Mr. Ray] is relieved of his duties by the court or replaced by other counsel after a finding of good cause is entered on the record. Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (Vernon Supp. 2009).
In light of Mr. Scotts statement to this court that he has been retained to prosecute appellants appeals, we now abate the appeals and remand them to the trial court for further proceedings.
On remand, the trial court shall use whatever means it finds necessary to determine the following:
1. Whether appellant still desires to prosecute his appeals;
2. Whether Mr. Scott has been retained to represent appellant in the two appeals;
3. Whether Mr. Ray desires to be relieved of his duties as appellate counsel in light of Mr. Scotts representation, and if so, good cause exists to relieve Mr. Ray of his duties;
4. If Mr. Scott is to be substituted for Mr. Ray as appellants counsel, whether appellants consent to the substitution properly has been obtained; and,
5. Any additional issues the trial court finds material to ensuring appellant receives effective assistance of counsel.
If the trial court finds that Mr. Scott has been retained to represent appellant, that appellant properly has consented to the substitution of counsel, and that Mr. Ray desires to withdraw, the trial court may allow Mr. Ray to withdraw as counsel. Concerning its resolution of the foregoing issues, the trial court shall execute findings of fact and conclusions of law, and shall cause its findings, conclusions, and any orders the court signs to be included in supplemental clerks records to be filed with the clerk of this court by September 10, 2010.
It is so ordered.
Per Curiam
Do not publish.
[1] Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493 (1967).
[2] See In re Schulman, 252 S.W.3d 403, 408-409, 409 n.23 (Tex.Crim.App. 2008) (describing timing and nature of defendants pro se response to Anders brief filed by counsel).
[3] According to documents contained in the clerks record, Gregory Gray was appellants court-appointed trial counsel. But the docket sheet identifies Mr. Gray and Mr. Scott as appellants counsel. Mr. Scott signed the certification of right of appeal and notice of appeal as appellants counsel.