Tom Richard Doyle, Jr. v. State ( 2003 )

NO. 07-03-0024-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

OCTOBER 22, 2003 ______________________________

TOM RICHARD DOYLE, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 359^TH DISTRICT COURT OF MONTGOMERY COUNTY;

NO. 02-05-03090-CR; HON. JAMES H. KEESHAN, PRESIDING _______________________________ Abatement and Remand _______________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

Pending before the court are two motions entitled 1) "Motion to Substitute Attorney of Record, or, in the alternative, to Remand to Trial Court for Hearing on Indigency and Appointment of Attorney" and 2) "Motion to Extend Time for the Purpose of Filing a Supplemental Brief on Behalf of Appellant." Appellant timely appealed his various criminal convictions and filed an appellant's brief on June 30, 2003. However, on the same day, his attorney of record, Mr. Peter E. Ryba, notified this court that he (Ryba) had been suspended from the practice of law beginning August 1, 2003, and ending on November 30, 2003.

In response to the notification from Ryba, this court informed the State and appellant that all action in this case would be suspended until November 30, 2003. Thereafter, the State moved, on October 2, 2003, to extend its briefing deadline, which motion we granted. Prior to the lapse of that deadline, however, an attorney named Kaye Ellis filed the motions to substitute counsel and for leave to file a supplemental brief. The purpose of the latter was to add more issues or points of error if deemed necessary. Furthermore, Ellis purported to act on behalf of the appellant and represented that the trial court appointed her to represent him. Yet, no signed and certified copy of an order appointing her to the cause accompanied the motions. Nor has this court remanded the appeal to re-invest the trial court with jurisdiction to appoint new counsel. Thus, whether Ellis has been appointed in lieu of Ryba is uncertain. Yet, it is known that appellant was dissatisfied with Ryba and sought alternate counsel.

Accordingly, we abate this appeal and remand the cause to the 359th District Court of Montgomery County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:

1. whether appellant desires to prosecute the appeal;

2. whether appellant is indigent and entitled to appointed counsel; and,

3. whether Peter Ryba should be removed as counsel for appellant and other counsel, such as Kaye Ellis, appointed in his stead.

The trial court shall cause the hearing to be transcribed. So too shall it execute findings of fact and conclusions of law addressing the aforementioned issues and disclosing the name, address, state bar number, and telephone and fax numbers of any new counsel it may appoint to represent appellant. The trial court shall also cause to be developed 1) a supplemental clerk's record containing the findings of fact and conclusions of law and all orders it issued as a result of its hearing on this matter, and 2) a reporter's record transcribing the evidence and arguments presented at the aforementioned hearing. Additionally, the trial court shall also cause the supplemental clerk's record to be filed with the clerk of this court on or before November 21, 2003. Should further time be needed by the trial court to perform these tasks, then same must be requested before November 21, 2003.

Finally, it is ordered that the State's current briefing deadline be vacated. If substitute counsel is appointed to represent appellant on appeal, that counsel is ordered to review the appellant's brief currently on file with this court and determine if any other issues regarding the validity of appellant's conviction and sentence necessitate briefing. Any additional briefing deemed necessary must be filed by appellant and appear in the form of an amended appellant's brief, which brief will then replace the original appellant's brief. The amended appellant's brief, if any, must be filed with this court on or before December 22, 2003. Any appellee's brief which the State may care to file must be filed with this court on or before January 22, 2004, irrespective of whether an amended appellant's brief is filed.

It is so ordered.

Per Curiam

Do not publish.