COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
JOSE LUIS GUITERREZ-JIMENEZ, § No. 08-21-00198-CR
Appellant, § Appeal from the
v. § County Criminal Court No. 2
THE STATE OF TEXAS, § of El Paso County, Texas
State. § (TC# 20210C01651)
§
ORDER
On January 3, 2022, this Court received a motion to withdraw as attorney of record from
Francisco F. Macias. Macias stated that a conflict precluded him from representing Appellant on
appeal because Appellant could not be located and Macias was the only other person who could
testify as to his client’s state of mind with respect to certain legal issues, meaning that Macias
could not represent Appellant any longer because Macias had been converted into a fact witness.
On January 6, 2022, we issued an order stating that in addition to the motion to withdraw,
we had received two separate notifications from the County Clerk filed prior to counsel’s
withdrawal motion informing us that the Clerk’s Record designation had not yet been made. We
ordered the trial court to conduct a hearing to determine (1) whether Appellant wished to continue
the appeal and (2) whether Appellant was entitled to the appointment of new counsel.
The trial court held a hearing on January 18, 2022. Appellant did not appear for the hearing.
Following the conclusion of the hearing, the trial court found that Appellant could not be located
and granted Macias’ motion to withdraw, finding there was good cause for Macias to withdraw
based on a conflict. However, the trial court did not appoint new counsel or make findings as to
whether Appellant would be entitled to the appointment of new counsel.
Under the circumstances, we find that appointment of new counsel is proper. We may not
dismiss a criminal appeal unless the appellant either files a motion to voluntarily dismiss the
appeal, see TEX.R.APP.P. 42.2(a), or the State files a motion to dismiss the appeal if the appellant
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escapes from custody. See TEX.R.APP.P. 42.4. Absent those circumstances, the appeal must
continue. See Lott v. State, 874 S.W.2d 687, 688 (Tex. 1994)(submitting criminal appeal where
appellant failed to file briefs and reviewing entire record for fundamental error); Bruner v. State,
No. 05-19-00356-CR, 2019 WL 4594212, at *2-*3 (Tex.App.--Dallas Sept. 23, 2019, no
pet.)(mem. op.).
Because the record does not show that Appellant affirmatively waived his right to an
appeal, we find that this appeal must move forward and that new counsel must be appointed. Cf.
In re J.A.C., No. 08-19-0042-CV (Tex.App.--El Paso Sept. 27, 2019)(order)(counsel’s duty to
represent juvenile defendant who could not be located on appeal continued because record did not
affirmatively show juvenile defendant waived right to appeal).
Therefore, we ORDER the trial court to, within 15 days of this order, appoint Appellant
new counsel to represent him on appeal. Our previous requirement from our January 6, 2022, order
that “[n]ew counsel is to make satisfactory arrangements within the County Clerk within 15 days
after their appointment” remains in effect. The order of appointment must be included in the clerk’s
record once satisfactory arrangements are met. The county clerk must file a request for an
extension or the clerk’s record within 15 days after satisfactory arrangements are made. Because
the trial court already granted Macias’ motion to withdraw, we deny Macias’ pending motion to
withdraw in this Court as moot.
IT IS SO ORDERED this 22nd day of March, 2022.
PER CURIAM
Before Rodriguez, C.J., Palafox and Alley, JJ.
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