Pamela Jamison v. State

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Pamela Jamison v. The State of Texas
Appellate case number: 01-13-00360-CR
Trial court case number: 57582
Trial court: 300th District Court of Brazoria County
The Clerk of the Court has examined the clerk’s record and has found that it does
not comport with the Texas Rules of Appellate Procedure, in that it does not include a
copy of the trial court’s certification of appellant=s right of appeal. See TEX. R. APP. P.
25.2(d), 34.5(a)(12). This order constitutes notice to all parties of the defective
certification. See TEX. R. APP. P. 37.1.
Further, appellant was represented in the trial court by appointed counsel, Bill
Leathers, and the record contains no indication that appellant’s counsel moved to
withdraw or was permitted to withdraw. Nevertheless, appellant’s notice of appeal was
filed pro se and no attorney has appeared in this Court on appellant’s behalf.
According to the trial court’s docket sheet, “[b]ased upon evidence, [the trial]
court revoked [appellant’s] indigent status” and the “Defendant’s status as indigent [was]
revoked based upon evidence.” However, a docket sheet is not part of the record on
appeal. See Zelaya v. State, Nos. 01-11-0977-CR, 01-11-00978-CR, 01-11-00979-CR,
2013 WL 127439, at *1 (Tex. App.—Houston [1st Dist.] Jan. 10, 2013, no pet.) (not
designated for publication). And, pursuant to the Code of Criminal Procedure, Bill
Leathers continues to represent Jamison, because he has not been discharged by the trial
court and the appeal has not been exhausted. See TEX. CODE CRIM. PROC. ANN. art.
26.04(j)(2) (West Supp. 2013) (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”). Further, if Bill Leathers was
permitted to withdraw, appellant is entitled to a new court-appointed counsel, unless she,
her counsel, or the attorney representing the State moved for reconsideration of the trial
court’s determination that she is indigent and the trial court found that a material change
in her financial circumstances occurred. See id. art. 26.04(p); see also TEX. CODE CRIM.
PROC. ANN. art. 1.051(d)(1); 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 immediately conduct a hearing at which a
representative of the Harris County District Attorney’s Office and appellant’s trial
counsel, Bill Leathers, 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) Execute a certification of appellant’s right to appeal indicating whether or
not appellant has the right of appeal;
2) Determine whether appellant still wishes to pursue this appeal;
3) If appellant wishes to pursue this appeal, determine whether appellant’s
counsel, Bill Leathers, intends to represent appellant on appeal or whether
counsel should be permitted to withdraw;
4) If counsel is permitted to withdraw, enter a written order granting his
request to withdraw and determine whether appellant is currently indigent
or whether there has been a material change in her financial circumstances
since the trial court’s November 8, 2010 order finding her to be indigent
such that she is no longer indigent;
5) If appellant is either currently indigent or there has not been a material
change in her financial circumstances, appoint substitute appellate counsel
at no expense to appellant;
6) If appellant is not currently indigent and there has been a material change in
her financial circumstances:
a. Enter written findings of fact establishing the material change in
appellant’s financial circumstances;
b. Admonish appellant regarding the dangers and disadvantages of self-
representation, and
i. If appellant wishes to knowingly and intelligently waive her
right to counsel, obtain a written waiver of the right to
counsel; or,
ii. if appellant does not wish to proceed pro se, provide a
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.
deadline by which appellant must hire an attorney, which
shall be no later than 30 days from the date of the hearing;
7) Make any other findings and recommendations the trial court deems
appropriate; and
8) Enter 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); TEX. R.
APP. P. 25.2(a)(2), (d); Ward, 740 S.W.2d at 798; Lopez, 486 S.W.2d at 560; Fowler, 874
S.W.2d at 114.
The trial court shall have a court reporter, or court recorder, record the hearing.
The trial court clerk is directed to file a supplemental clerk’s record containing the trial
court’s findings, recommendations, and orders with this Court within 30 days of the date
of this order. The court reporter is directed to file the reporter’s record of the hearing
within 30 days of the date of this order. If the hearing is conducted by video
teleconference, a certified recording of the hearing shall also be filed in this Court within
30 days of 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: February 11, 2014