dissenting on state’s motion for rehearing.
Today this Court decides that our decision to dismiss the State’s petition for discretionary review as improvidently granted was erroneous, and instead grants the State’s motion for rehearing and grants relief. To that action I respectfully dissent.
I reiterate what I stated in my concurring opinion on original submission. I fully agree that appellant in this ease is entitled to the relief of being represented by counsel during the time period wherein she has the opportunity to file a motion for new trial pursuant to Tex.R.App.Pro. 31(a)(1). I am satisfied that the court of appeals’ opinion effectively accomplishes this end and believe the court of appeals decision should be sustained.
Appellant was charged by indictment with the offense of forgery, Tex. Penal Code Section 32.21 (Vernon 1989), alleged to have been committed on or about January 9,1989, in Harris County. On January 13, 1992, a jury found Appellant guilty of forgery; the trial court assessed punishment at three years confinement in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). The- Fourteenth Court of Appeals held that appellant had been denied her right to counsel at a critical stage of the judicial proceedings and ultimately remanded the cause to the trial court for a hearing on the motion for new trial and the orderly conduct of subsequent post-trial proceedings in accordance with its opinion. Oldham v. State, 889 S.W.2d 461 (Tex.App.—Houston [14th Dist.] 1994). We granted the State’s petition for discretionary review on two questions/grounds:
1. Whose burden is it to show that an appellant was or was not abandoned by trial counsel during a critical stage of the prosecution?
2. May an appellate court suspend application of the rules of appellate procedure without any firm basis in the record for finding good cause?
I. SUMMARY OF PERTINENT FACTS
On January 13, 1992, a jury found Appellant guilty of forgery; she was sentenced the same day. It is undisputed that appellant had retained counsel during the trial and sentencing. On February 10,1992, appellant filed pro se notices of indigency and of appeal. On March 16, 1992, the trial court *367appointed appellate counsel. The appointment of counsel occurred sixty-three days after sentence was imposed and thirty-three days after the deadline for filing a motion for new trial had expired.
On March 16, 1992, appellant’s appointed counsel filed a motion to abate the appeal on the grounds that she had been denied counsel during the thirty-day period for filing a motion for a new trial. On April 9, 1992, appellant’s appointed counsel filed an amended motion for abatement of appeal. On April 16, 1992, the Fourteenth Court of Appeals overruled appellant’s motion for abatement of appeal.
On appeal, appellant raised fifteen points of error. The court of appeals held that points of error twelve through fifteen were dispositive of the case and declined to discuss points of error one through eleven. Oldham v. State, 889 S.W.2d 461, 462 (Tex.App—Houston [14th Dist.] 1994). In points of error twelve through fifteen, appellant contended that she was denied her constitutional right to counsel during a critical phase of the judicial proceedings. The Fourteenth Court of Appeals agreed and remanded the ease to the trial court for a hearing on the motion for a new trial. In accordance with Texas Rule of Appellate Procedure 2(b), the court of appeals held that appellant had demonstrated “good cause” for extending the deadline for filing a motion for new trial. Id. at 463.
II. ANALYSIS OF STATE’S CLAIMS
The State contends that there is no evidence on the docket sheet that appellant’s trial attorney was released, and that therefore she was still technically represented by counsel. The court of appeals held that it was clear that appellant was denied her right to counsel at a critical stage of the judicial proceedings.
In addition, the State urges us to mandate that “good cause” be evinced by a foundation upon the record before the Rules of Appellate Procedure can be suspended by a court of appeals or even by this Court. The court of appeals held that good cause was shown to suspend the Rules of Appellate Procedure.
In Arcila v. State, 834 S.W.2d 357 (Tex.Cr.App.1992), this Court decided that it would decline to substitute its own judgment for that of the court of appeals, even if this Court’s decision might be different on a question presented. “So long as it appears that [the court of appeals] ha[s] discharged [its] duty conscientiously by impartial application of pertinent legal doctrine and fair consideration of the’ evidence, it is our duty in turn to respect [its] judgments.” Id. at 360. While Arcila involved a defendant’s petition for discretionary review and the instant cause is the result of the State’s petition for discretionary review, such is not a reason for disparate treatment.
III. CONCLUSION
In answer to the State’s question/ground for review number one, the burden of proof to show abandonment of counsel is upon the appellant. In the instant case, the court of appeals found that appellant met that burden. In answer to the State’s question/ground for review number two, an appellate court for good causes shown may suspend requirements and provisions of any of the Rules of Appellate Procedure in a particular case. In the instant case, the court of appeals found good cause to suspend the rules.
Based on Arcila, supra, we should decline to substitute our judgment in the instant cause for that of the court of appeals. Therefore the judgment of the court of appeals should be sustained by this Court and our improvident grant dismissal on original submission appropriately did so. I also note that a pro se defendant, unschooled in the finer points of legal advocacy, who is without legal counsel would be very hard pressed to know the proper procedure to create and present a record to show that he is without legal counsel.
Because a majority of this Court now, on rehearing over two years after our opinion on original submission, chooses to substitute its judgment for that of the court of appeals, I respectfully dissent.