In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-16-00032-CR
THE STATE OF TEXAS, Appellant
V.
JAMEL MCLELLAND FOWLER, Appellee
On Appeal from the 196th District Court
Hunt County, Texas
Trial Court No. 30,511
Before Morriss, C.J., Moseley and Burgess, JJ.
ORDER
After a Hunt County jury returned a guilty verdict against Jamel McLelland Fowler for
burglary of a building, Fowler filed a motion for new trial, and the trial court granted that motion
and entered a judgment of acquittal. The State appealed. On March 14, 2017, this Court issued
its opinion and judgment affirming the trial court’s acquittal of Fowler, and the State filed a petition
for discretionary review (PDR) with the Texas Court of Criminal Appeals on April 3, 2017. The
Court of Criminal Appeals reversed our opinion on June 28, 2017. The mandate finalizing the
Court of Criminal Appeals’ decision was issued on July 24, 2017. After a thorough review of the
appellate record filed under this cause number, and even though Fowler was clearly represented
by counsel at the original appeal in this case, we find no record of an official appointment of
counsel to represent Fowler on appeal in this case. Accordingly, it appears that appointment of
counsel to represent Fowler at this stage is necessary. A brief recitation of the procedural history
of this case is necessary.
After Fowler’s conviction in a companion case filed under our cause number 06-16-00038-
CR, the trial court found Fowler to be indigent and appointed Jessica Edwards to represent Fowler
on appeal in that case. There is no such order in the record in the present case. The reason for this
appears to be because Fowler was acquitted in the present case and, therefore, had nothing to
appeal from the judgment in this case. Yet, even though the order of appointment in cause number
06-16-00038-CR did not specify that Edwards’ appointment included the original appeal in the
present case, Edwards represented Fowler in both cause number 06-16-00038-CR and this case.
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Therefore, regardless of whether the original appointment order included this case or not, Fowler
was, at a minimum, de facto represented by counsel on his initial appeal.
Nevertheless, Edwards’ de facto representation ended when our original opinion in this
case was entered. Article 1.051 of the Texas Code of Criminal Procedure provides:
An eligible indigent defendant is entitled to have the trial court appoint an attorney
to represent him in the following appellate and postconviction habeas corpus
matters: (1) an appeal to a court of appeals; (2) an appeal to the Court of Criminal
Appeals . . . if a petition for discretionary review has been granted; . . . and (4) any
other appellate proceeding if the court concludes that the interests of justice require
representation.
TEX. CODE CRIM. PROC. ANN. art. 1.051(d) (West Supp. 2016). Accordingly, once we issued our
opinion, Fowler had no right to further representation on appeal until the Court of Criminal
Appeals granted the State’s PDR. See Blankenship v. Johnson, 118 F.3d 312, 317 (5th Cir. 1997)
(acknowledging “the well-settled rule that a criminal defendant does not have a right to counsel
for the preparation of petitions for discretionary review,” but holding that due process is violated
“if the state [is] allowed to challenge the defendant’s successful direct appeal without providing
him with counsel after a discretionary appeal is granted to the state”).
However, the Court of Criminal Appeals has held that when a case is reversed on
discretionary review and remanded to the court of appeals for reconsideration, it effectively
“reinstate[s] the status of said cause to the first level of appeal, a stage of proceedings in which
applicant had the right to appointment of counsel if he was indigent at the time of the remand.” Ex
parte Lopez, 763 S.W.2d 427, 429 (Tex. Crim. App. 1989). Therefore, Fowler is clearly entitled
to the appointment of counsel at this stage of the proceeding. Yet, the original appointment order
does not appear to include this case, and we are unable to find any order by the Court of Criminal
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Appeals appointing Fowler counsel or abating the case and remanding the case to the trial court
for appointment of counsel after granting the State’s PDR.1
Consequently, because the original appointment order did not include this case, because
counsel’s de facto representation of Fowler ended with the issuance of our opinion in the present
case, and because there is no indication that the Court of Criminal Appeals appointed counsel after
granting the State’s PDR, it appears that Fowler is now unrepresented upon remand. In light of
this fact, on our own motion, and in the interests of justice, we abate this appeal to the trial court
with directions to officially appoint counsel to represent Fowler before this Court through the
remainder of this appeal.
The trial court need not hold a hearing to accomplish this appointment, though it is free to
do so if necessary. A written memorialization of the trial court’s appointment shall be entered into
the record of the case and presented to this Court in the form of a supplemental clerk’s record
within five days of the date of this order, or on or before August 7, 2017. Upon receipt of the
supplemental clerk’s record identifying appointed counsel, this abatement will terminate. At that
time, we will communicate with the attorneys in this matter regarding the briefing, if any, that we
may require on remand.
IT IS SO ORDERED.
BY THE COURT
Date: July 31, 2017
1
This appears to be because the Court of Criminal Appeals granted the relief requested by the State at the same time
it granted the State’s PDR without briefing from the parties.
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