Kelor King v. State

Opinion issued January 7, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00237-CR
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KELOR KING, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1437649
MEMORANDUM OPINION
Appellant, Kelor King, pleaded guilty to the second-degree felony offense of
assault of family member—second offender and impeding breathing, for which the
trial court deferred adjudicating his guilt and placed him on deferred adjudication
community supervision for six years on September 30, 2014. See TEX. PENAL CODE
ANN. §§ 12.33(a), 22.01(b-1) (West Supp. 2015); TEX. CODE CRIM. PROC. ANN. art.
42.12, § 5(a) (West Supp. 2015). On February 18, 2015, after appellant pleaded true
to the allegations that he had violated the terms and conditions of his probation in
the State’s motion to adjudicate his guilt, the trial court assessed appellant’s
punishment at five years’ confinement. See TEX. CODE CRIM. PROC. ANN. art. 42.12,
§ 5(b). The trial court certified that appellant had the right of appeal because this
was not a plea-bargain case. See TEX. R. APP. P. 25.2(a)(2)(B).
On February 25, 2015, appellant timely filed a pro se notice of appeal from
the judgment adjudicating guilt, and, on March 2, 2015, the trial court appointed
Keisha Smith to represent appellant. See TEX. R. APP. P. 26.2(a)(1). Because the
clerk’s record, filed on April 17, 2015 in this Court, did not contain any order
showing that Smith had been discharged by the trial court, it appeared that she
continued to represent appellant. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2)
(West Supp. 2015) (requiring appointed attorney to “represent the defendant until
charges are dismissed, the defendant is acquitted, appeals are exhausted, or the
attorney is permitted or ordered by the court to withdraw as counsel for the defendant
after a finding of good cause is entered on the record”). Consequently, on August 6,
2015, the Court construed appellant’s first pro se request to withdraw appeal, filed
on July 27, 2015, as a motion to dismiss the appeal and dismissed the motion without
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prejudice to refiling because it lacked his counsel’s signature. See TEX. R. APP. P.
42.2(a).
On September 14, 2015, appellant filed a second pro se request to withdraw
appeal, again stating that he did not wish to prosecute his appeal and requesting
withdrawal of his notice of appeal. See TEX. R. APP. P. 42.2(a). On September 22,
2015, this Court similarly dismissed without prejudice appellant’s second pro se
request to withdraw appeal, construed as a motion to dismiss, because that motion
also was not signed by his counsel. See id.1
Also on September 22, 2015, this Court abated this case for a late-brief
abatement hearing because appellant’s counsel, Smith, had failed to timely file a
brief. See TEX. R. APP. P. 38.8(b)(2). On October 30, 2015, the trial clerk filed a
supplemental clerk’s record in this Court including, among other documents, the trial
court’s order, signed on April 23, 2015, granting Smith’s motion to withdraw as
appellant’s appellate counsel, which was not included in the clerk’s record.
Thus, the Court construes appellant’s third pro se request to withdraw appeal,
filed in duplicate on September 14, 2015, as a motion to dismiss the appeal filed in
compliance with Texas Rule of Appellate Procedure 42.2(a) because it was signed
by appellant after the trial court had permitted his appellate counsel to withdraw.
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Appellant filed two pro se requests to withdraw his appeal on September 14, 2015,
with the second one marked by the Clerk of this Court as a duplicate, but this Court’s
September 22, 2015 Order dismissed only one of those motions.
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See TEX. R. APP. P. 42.2(a). Furthermore, on November 18, 2015, the court reporter
filed in this Court a supplemental reporter’s record of the abatement hearing, held
by the trial court on October 30, 2015, in which the pro se appellant confirmed on
the record in open court that he did not wish to pursue his appeal and requested
withdrawal. Although appellant’s motion to dismiss does not contain a certificate
of conference, this motion has been on file with the Court for more than ten days
with no response, and no opinion has issued. See id. 10.3(a), 42.2(a).
Accordingly, we direct the Clerk of this Court to reinstate this appeal, grant
the appellant’s motion, filed on September 14, 2015, and dismiss the appeal. See
TEX. R. APP. P. 42.2(a), 43.2(f). We dismiss any other pending motions as moot.
PER CURIAM
Panel consists of Justices Jennings, Keyes, and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
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