Jack Hamilton Carr v. State

ACCEPTED 03-15-00489-CR 7013994 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/21/2015 12:49:03 PM JEFFREY D. KYLE CLERK C ASE N UMBER 03-15-00489-CR FILED IN 3rd COURT OF APPEALS J ACK H AMILTON C ARR C OURT OF A PPEAL AUSTIN, TEXAS S 9/21/2015 12:49:03 PM Appellant JEFFREY D. KYLE VS . T HIRD D ISTRICT OFClerk T EXAS T HE S TATE OF T EXAS AUSTIN , T EXAS On appeal from the County Court at Law Number One Hays County, Texas Cause Number 100080 M OTION FOR L EAVE TO W ITHDRAW M R . E LLIC S AHUALLA Counsel for Appellant State Bar Number 24057365 600 W. 13th St. Austin, Texas 78701 ph (512) 921-8247 fax (512) 451-5882 em ellic@sahuallalaw.com I DENTITY OF PARTIES & C OUNSEL A p p e l l a t e Pa r t i e s MR. JACK HAMILTON CARR T HE S TATE OF T EXAS Appellant Appellate Counsel M R . E LLIC S AHUALLA T HE H ONORABLE W ES M AU Counsel for Appellant Counsel for the State State Bar Number 24057365 State Bar Number 00784539 600 W. 13th St. Austin, Texas 78701 712 S. Stagecoach Trail, Ste. 2057 ph (512) 921-8247 fax (512) 451-5882 San Marcos, Texas 78666 em ellic@sahuallalaw.com ph (512) 393-7600 fax (512) 393-7619 em wes.mau@co.hays.tx.us M OTION FOR L EAVE TO W ITHDRAW T O THE H ONORABLE C OURT: Ellic Sahualla (“Counsel”), counsel for the appellant (“Carr”), is moving for leave to withdraw and would show the following: Re l e va n t B a ck g r o u n d & G r o u n d s f o r W i t h d r awa l The relevant background and grounds for withdrawal are described in detail in the attached motion to withdraw filed with and signed by the trial court. In short, however, Carr is in a dispute with the trial court over what documentation he should be required to provide to prove he is indigent. Carr has informed Counsel and the trial court (via affidavit) that he is indigent and cannot afford an attorney or the appellate record. The trial court has indicated it will not pay Counsel for appellate work or provide the record free of charge without an IRS transcript covering the last several years from Carr, who has refused to provide one because he believes he is being singled out to dissuade him from pursing this appeal. Given this impasse, continued representation on appeal would result in an unreasonable financial burden on Counsel. Re q u i r e d C o n t e n t s The following content is required by T EX . R. A PP. PROC. 6.5 (a): (1) The current deadlines in this case are for the reporter’s and clerk’s records, which are due on September 28, 2015; should they be filed on that date, Counsel would expect Carr’s brief to be due on October 28, 2015. There are currently no settings in this case. Withdrawal, 03-15-00489-CR Page 1 of 3 (2) The party who Counsel wishes to withdraw from representing is Jack Hamilton Carr, whose last known address is 166 Plum Creek Lane in Dripping Springs, Texas 78620, and whose last known telephone number is (512) 214-0936. (3) A copy of this motion was delivered to Carr by mailing it—both by certified and first-class mail—to him at his last known address. (4) Carr was notified in writing of the right to object to this motion. Ve r i f i c a t i o n This motion does not need to be verified because the facts it depends on are within the personal knowledge of Counsel, whose signature appears below. P r ay e r Counsel moves this court to grant this motion and allow Counsel to withdraw. R ESPECTFULLY, M R . E LLIC S AHUALLA Counsel for Appellant State Bar Number 24057365 600 W. 13th St. Austin, Texas 78701 ph (512) 921-8247 fax (512) 451-5882 em ellic@sahuallalaw.com Withdrawal, 03-15-00489-CR Page 2 of 3 C ERTIFICATE OF S ERVICE I certify that on September 21, 2015, a true and correct copy of this document was served on the Honorable Wes Mau (whose address is 712 S. Stagecoach Trail, Ste. 2057, San Marcos, Texas 78666) through the electronic filing manager. M R . E LLIC S AHUALLA Counsel for Appellant State Bar Number 24057365 600 W. 13th St. Austin, Texas 78701 ph (512) 921-8247 fax (512) 451-5882 em ellic@sahuallalaw.com Withdrawal, 03-15-00489-CR Page 3 of 3 CAUSE NO. 100080 THE S TAT E O F TEXAS COUNTY COURT vs. AT LAW J AC K HAMILTO N C ARR HAYS COUNTY, TEXAS MOTION TO WITHDRAW TO THE HONORABLE JUDGE OF THIS COURT: Ellie Sahualla, trial counsel ("Counsel") for the defendant ("Carr"), wishes to withdraw from the representation of Carr and would show the following: I. GROUNDS FOR WITHDRAWAL Counsel was appointed to represent Carr, who pursued a jury trial in this case. Carr was convicted on July 8, 2015, and sentence was imposed in open court on July 30, 2015. At sentencing, Counsel assisted Carr in informing the court that be wished to pursue an appeal and requesting appointed counsel. The court instructed Carr to fill out a new application for an appointed attorney so it could determine whether be was still indigent When Carr did, be was asked to provide an Internal Revenue Service transcript showing the last several years of his income for verification purposes. Carr refused, believing other applicants were not asked for such verification and that he was being singled out to dissuade him from pursuing an appeal. In light of the situation, Counsel timely filed a notice of appeal on August 4, 2015 and docketed the case with the Third Court of Appeals sbordy thereafter to protect Carr's interests. No court appointed attorney--Counsel or otherwise--bas been provided for Carr as of this filing. Counsel is qualified and willing to accept appointment to pursue an appeal in this matter. However, even if Counsel were to accept the case pro bono, Counsel is (naturally) unwilling to pay for the record out of pocket, so further representation would result in an unreasonable financial burden on CounseL II. LEGAL STANDARDS Generally, a lawyer may withdraw if "the representation will result in an unreasonable financial burden on the lawyer." TEX. DISCIPLINARY R. PROF'L CONDUCT 1.15 (b)(6). A lawyer may also withdraw for any other good cause shown. Id. (b)(7). After withdrawal, the lawyer "shall take steps to the extent reasonably practicable to protect a client's interests." Id. (d). An attorney appointed to represent a client in a criminal case must "represent the defendant until ... appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel ... after a finding of good cause is entered on the record" TEX. CODE CRIM. PROC. ANN. art 26.04 0)(2) (West 2006). If a defendant is not otherwise represented on appeal and wishes to pursue one, appointed trial counsel must "assist the defendant in requesting the prompt appointment of Motion to Withdraw Page 1 of 2 replacement counsel" before withdrawing, and if appellate counsel is "not appointed promptly (trial counsel must] file a timely notice of appeal." Id. (j)(3). III . PRAYER Counsel moves this court to grant this motion and allow Counsel to withdraw from the representation of Carr. R ESPECTFULLY, H'iuc s:&uALLA Counsel for the Defendant State Bar Number 24057365 600 W. 13th St. Austin, T exas 78701 ph (512) 921-8247 fax (512) 451-5882 em ellic@sahuallalaw.com APPROVED AS TO FORM: HAMILTON CARR fendant CERTIFICATE OF SERVICE I certify that a true and correct copy of this document was served on the Hays County Criminal District Attorney's Office in person on September 17,2015. Counsel for the Defendant Motion to Withdraw Page 2 of 2 CAUSE No. 100080 THE STATE OF TEXAS COUNTY COURT vs. AT LAW JACK HAMILTON CARR HAYS COUNTY, TEXAS ORDER ON MOTION TO WITHDRAW After considering the motion to withdraw filed in this case, this court is of the opinion that it should be: ';Ill- GRANTED, and it is ordered that Ellie Sahualla has withdrawn from the representation of the defendant and is no longer the defendant's attorney of record in this case. 0 DENIED, to which the defendant and defense counsel object. Signedon4+ '2015.