IN THE
TENTH COURT OF APPEALS
No. 10-09-00029-CR
Roger Olan Brannan,
Appellant
v.
The State of Texas,
Appellee
From the 66th District Court
Hill County, Texas
Trial Court No. 35,430
abatement ORDER
Roger Olan Brannan was convicted of two counts of burglary of a building which were enhanced to second degree felonies. See Tex. Penal Code Ann. § 30.02 (Vernon 2003). He was sentenced to six years in prison.
The trial court modified the Certification of Defendant’s Right of Appeal to indicate that the case “is not a plea bargain case as to sentencing phase, and the defendant has the right of appeal.” It is unclear whether Brannan pled guilty pursuant to a plea bargain as to guilt only, whether Brannan has the right to appeal anything occurring in both the guilt/innocence phase and the punishment phase of the trial, or whether his right of appeal is limited to the punishment phase only.
Further, Brannan sent a letter to the trial court expressing his desire to appeal, his displeasure with his counsel, and his request for “a lawyer that will represent my case in my best interest.” Because counsel is appointed, the trial court must decide whether to remove or allow counsel to withdraw. See Enriquez v. State, 999 S.W.2d 906, 907-908 (Tex. App.—Waco 1999, order); Tex. Code Crim. Proc. art 26.04(j)(2) (Vernon Supp. 2008).
Accordingly, this case is abated to the trial court to conduct a hearing, within 30 days from the date of this order, to determine the scope of the Certification of Defendant’s Right of Appeal and to consider whether to remove counsel or allow counsel to withdraw or whether to appoint new counsel. The hearing regarding appointment of counsel will be similar to a Rule 38.8(b)(3) hearing. See Tex. R. App. P. 38.8(b)(3).
A supplemental clerk’s record, evidencing the trial court’s decision as to the scope of the Certification of Right of Appeal and as to the appointment of counsel, and a supplemental reporter’s record, if any, are ordered to be filed within 45 days from the date of this order.
PER CURIAM
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Appeal abated
Order issued and filed February 11, 2009
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