Michael Anthony Pena v. State ( 2011 )

NO. 07-11-00222-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 2, 2011
MICHAEL ANTHONY PENA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;
NO. 2871; HONORABLE KELLY G. MOORE, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Appellant, Michael Anthony Pena, was convicted by a jury of driving while
intoxicated with a child passenger,1 and sentenced to two years confinement which
was suspended while appellant was placed on community supervision for a period of
four years. Appellant timely filed notice of appeal. Appellant’s appointed trial counsel
filed a motion to withdraw, which was granted by the trial court. On May 25, 2011, the
trial court appointed John Bennett to prosecute appellant's appeal. The clerk’s record
was filed on September 2, and the reporter’s record was filed on September 9.
Appellant's brief was originally due to be filed on October 10. See TEX. R. APP. P.
1
See TEX. PENAL CODE ANN. § 49.045 (West 2011).
38.6(a). On October 4, appellant requested an extension of time to file the brief due to
Bennett’s extremely busy work schedule. This request was granted extending the
deadline to November 9. On November 9, appellant again requested an extension of
time to file the brief due to Bennett’s extremely busy workload. This second request
was denied, and appellant was notified that, if the brief was not filed by November 28,
the appeal may be abated and remanded to the trial court. On November 28, appellant
filed a Motion to Extend Time to File the Appellant's Brief by Sixty Days, or in the
Alternative, Motion to Withdraw as Counsel. As grounds for the motion, counsel again
cites an extremely busy work schedule.
As evidenced by the denial of appellant’s last request for extension of time to file
the brief, this Court is not inclined to grant appellant another lengthy extension of time to
file Appellant's brief.2 Additionally, this Court is without authority to grant court-
appointed counsel's request to withdraw. It is the trial court that has the responsibility
for appointing counsel to represent indigent defendants, as well as the authority to
relieve or replace counsel. See TEX. CODE CRIM. PROC. ANN. arts. 1.051(d), 26.04 (West
Supp. 2011); Enriquez v. State, 999 S.W.2d 906, 907 (Tex.App.--Waco 1999, no pet.).
Further, the trial court retains authority to appoint or substitute counsel even after the
appellate record has been filed. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2);
Enriquez, 999 S.W.2d at 908.
Considering that appellant's counsel was appointed by the trial court, we now
abate this appeal and remand the cause to the trial court for further proceedings. See
2
This Court does not consider a busy work schedule to constitute good cause for
granting repeated motions to extend the time to file a brief. See Curry v. Clayton, 715
S.W.2d 77, 79-80 (Tex.App.--Dallas 1986, no writ).
2
TEX. R. APP. P. 38.8(b)(2). Upon remand, the trial court is directed to immediately cause
notice to be given of and to conduct a hearing to determine: (1) whether good cause
exists upon which to grant appointed counsel's motion to withdraw; (2) if so, whether
appellant still desires to prosecute this appeal and is indigent and, therefore, is entitled
to new appointed counsel; and (3) what orders, if any, should be entered to assure the
filing of appropriate notices and documentation to dismiss appellant=s appeal if appellant
does not desire to prosecute this appeal or, if appellant desires to prosecute this appeal,
to assure that the appeal will be diligently pursued. If the trial court determines that the
present attorney for appellant should be replaced, the trial court should cause the Clerk
of this Court to be furnished the name, address, and State Bar of Texas identification
number of the newly-appointed or newly-retained attorney.
The trial court shall execute findings of fact and conclusions of law, and shall
cause its findings, conclusions, and any necessary orders to be included in a
supplemental clerk's record to be filed with the Clerk of this Court on or before January
3, 2012. Further, the trial court shall cause the hearing proceedings to be transcribed
and included in a supplemental reporter=s record to be filed with the Clerk of this Court
on or before January 3, 2012. See TEX. R. APP. P. 38.8(b)(3). Finally, if new counsel is
appointed to represent appellant in this appeal, counsel shall file appellant's brief within
thirty days after the date of appointment.
It is so ordered.
Per Curiam
Do not publish.
3