Alfred Rodriguez, Jr. v. State ( 2014 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Alfredo Rodriguez, Jr. v. The State of Texas
Appellate case number: 01-14-00394-CR
Trial court case number: 1931465
Trial court: County Criminal Court at Law No. 9 of Harris County
On November 24, 2013, the State filed an information charging appellant with the
misdemeanor offense of assault. Appellant filed a request for counsel and a pauper’s
oath declaration, and, on December 3, 2013, the trial court found appellant indigent and
appointed Andrew D. Martin to represent him. On April 9, 2014, a jury found appellant
guilty. On May 6, 2014, appellant and counsel timely filed a notice of appeal. On the
same day, counsel also filed a motion to withdraw in the trial court, stating that appellant
“desires to hire other counsel to perfect an appeal.”
On June 3, 2014, counsel filed a “motion to withdraw as attorney of record” in this
Court. In the motion, counsel states that he “wishes to withdraw because said Alfredo
Rodriguez, Jr. desire [sic] to hire another attorney to represent him on appeal.” The
motion provides a mailing address for appellant, but it fails to state that appellant has
been served with a copy of the motion or notified of his right to object to the motion and
it fails to provide a list of the current deadlines in the case. See TEX. R. APP. P. 6.5(a)(1),
(3), (4).
The record contains an order of the trial court granting the motion to withdraw that
counsel filed in the trial court. The record does not, however, indicate that appellant was
admonished about proceeding pro se, that appellant desires to proceed pro se, or that
appellant retained an attorney for his appeal, nor does it contain an order appointing
appellate counsel or a deadline for hiring appellate counsel. Further, although counsel
states in both the motion to withdraw filed in the trial court and the motion filed in this
Court that appellant wants to “hire” appellate counsel, the record does not show a change
in appellant’s financial circumstances or a voluntary waiver of appellate counsel.
An appellant has a right to counsel on direct appeal from a criminal conviction.
See Buntion v. Harmon, 827 S.W.2d 945, 948 (Tex. Crim. App. 1992); see also TEX.
CODE CRIM. PROC. ANN. art. 1.051(a) (West Supp. 2013). Further, because appellant
was found indigent by the trial court and the record contains no evidence that appellant’s
financial circumstances have changed, appellant is entitled to court-appointed counsel.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1), 26.04(p); Ward v. State, 740 S.W.2d
794, 798 (Tex. Crim. App. 1987); Lopez v. State, 486 S.W.2d 559, 560 (Tex. Crim. App.
1972); Fowler v. State, 874 S.W.2d 112, 114 (Tex. App.—Austin 1994, order, pet. ref’d).
We, therefore, abate this appeal and remand the cause to the trial court for further
proceedings. On remand, the trial court shall conduct a hearing at which a representative
of the Harris County District Attorney’s Office and appellant’s counsel, Andrew D.
Martin, shall be present. Appellant shall also be present for the hearing in person or, if
appellant is incarcerated, at the trial court’s discretion, appellant may participate in the
hearing by use of a closed-circuit video teleconferencing system that provides for a
simultaneous compressed full motion video and interactive communication of image and
sound.1
We direct the trial court to:
1) Determine whether appellant still wishes to pursue this appeal;
2) Admonish appellant regarding the dangers and disadvantages of self-
representation, including admonishments regarding the wisdom and
practical consequences of self-representation and that there are rules of
appellate procedure that appellant will be obligated to follow and that he
will not be granted any special consideration because of his lack of formal
training in law;
3) Determine whether appellant intends and has the resources to hire counsel;
a. If so, provide a deadline by which appellant must hire counsel,
which shall be no more than 30 days from the date of the hearing;
b. If not, appoint counsel to represent appellant on appeal;
4) At the conclusion of the hearing, the trial court shall discharge counsel
1 On request of appellant, appellant and his counsel shall be able to communicate
privately without being recorded or heard by the trial court or the attorney
representing the State.
Andrew D. Martin from representation of appellant in this appeal;
5) Make any other findings and recommendations the trial court deems
appropriate; and
6) Issue written findings of fact, conclusions of law, and recommendations as
to these issues, separate and apart from any docket sheet notations.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f); 26.04(j)(2), (p); Ward,
740 S.W.2d at 798; Lopez, 486 S.W.2d at 560; Fowler, 874 S.W.2d at 114; cf. TEX. CODE
CRIM. PROC. ANN. art. 1.051(g).
The trial court shall have a court reporter, or court recorder, record the hearing. A
supplemental clerk’s record containing any findings, recommendations, and orders of the
trial court made pursuant to this order shall be sent to this Court no later than 30 days
from the date of this order. See TEX. R. APP. P. 34.5(c). If the hearing is conducted by
video teleconference, an electronic copy of the hearing shall be filed in this Court no later
than 30 days from the date of this order.
The appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket when records
that comply with our order are filed with the Clerk of this Court. The court coordinator
of the trial court shall set a hearing date and notify the parties.
It is so ORDERED.
Judge’s signature: /s/ Chief Justice Sherry Radack
 Acting individually  Acting for the Court
Date: June 24, 2014