NO. 07-11-00085-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 31, 2011
CESAR DAN HERNANDEZ-SANDOVAL, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 291ST DISTRICT COURT OF DALLAS COUNTY;
NO. F-0954675-U; HONORABLE SUSAN LYNN HAWK, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ORDER OF ABATEMENT AND REMAND
Pending before this Court is “Appellant’s Motion for Abatement of Appeal to Allow
Withdrawal of Counsel and Appointment of New Counsel” in which appointed counsel
explains that health complications require that he reduce his appellate workload.
Counsel requests, “in the interest of justice for Appellant,” that this Court grant counsel
leave to withdraw, abate the instant cause, and remand it to the trial court for
appointment of new counsel to prosecute appellant’s appeal. We will deny the motion
in part, grant the motion in part, and remand this cause to the trial court for further
proceedings.
When faced with a motion requesting that original court-appointed attorney be
allowed to withdraw and that another attorney be substituted to pursue the appeal, the
Texas Court of Criminal Appeals has stated that “it is fitting that a case should be
abated to the trial court for substitution of counsel,” “[e]specially given the elaborate
mechanism for making court appointments for indigent criminal defendants that is now
in place under Article 26.04.” Meza v. State, 206 S.W.3d 684, 688 (Tex.Crim.App.
2006) (citing with approval Enriquez v. State, 999 S.W.2d 906, 908 (Tex.App.—Waco
1999, order)). Under Article 26.04, a court-appointed attorney shall “represent the
defendant until charges are dismissed, the defendant is acquitted, appeals are
exhausted, or the attorney 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) (West Supp. 2010).
Based on Article 26.04’s directives regarding the responsibility for appointing
counsel for indigent defendants and the duration of representation by a court-appointed
attorney and based on Meza’s approval of the abate and remand procedure in this
situation, we abate and remand this cause to the trial court to determine whether
counsel should be granted leave to withdraw from representation of appellant. See
Matthews v. State, Nos. 07-10-00385-CR & 07-10-00386-CR, 2011 Tex. App. LEXIS
2715, *2 (Tex.App.—Amarillo Apr. 12, 2011, no pet.) (mem. op., not designated for
publication) (emphasizing that it is the trial court which “possesses the authority to
relieve or replace appointed counsel on a finding of good cause”). Therefore, with
respect to counsel’s request that this Court grant him leave to withdraw from
representation at this time, we deny said request. In all other respects, we grant the
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motion, abate this cause, and remand it to the trial court for further proceedings so that
the trial court may take such measures as may be necessary to assure appellant
effective assistance of counsel.
Upon remand the trial court shall determine (1) whether to grant original
appointed counsel’s motion to withdraw and, if so, (2) whether appellant still desires to
prosecute this appeal and is indigent and entitled to new appointed counsel.
Concerning the trial court’s resolution of the foregoing issues, it shall execute findings of
fact and conclusions of law, and shall cause its findings, conclusions, and any orders
the trial court signs to be included in a supplemental clerk’s record. Should the trial
court appoint new counsel for appeal, the name, address, telephone number, and state
bar number of counsel shall be included in the order appointing new counsel. Should
the trial court conduct a hearing of this matter, the evidence and argument presented
shall be included in a supplemental reporter’s record. The trial court shall cause the
supplemental clerk’s records and the supplemental reporter’s record, if any, to be filed
with the Clerk of this Court on or before September 26, 2011. Should additional time be
necessary for performing these tasks, the trial court may request same on or before
September 26, 2011.
It is so ordered.
Per Curiam
Do not publish.
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