Jamicheal Lamarr Hill v. State

NO. 07-10-00281-CR, 07-10-00282-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 10, 2010
JAMICHEAL LAMARR HILL, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY;
NO. 1128038D, 1165716D; HONORABLE GEORGE W. GALLAGHER, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ORDER OF ABATEMENT AND REMAND
Through two cases on appeal, appellant Jamicheal Hill challenges the judgments
of the trial court. On a finding that appellant lacked the means to employ appellate
counsel, the trial court appointed William H. “Bill” Ray to represent him on appeal. In
both cases, Mr. Ray filed a motion to withdraw from representation supported by an
Anders brief. 1 Because appellant has not yet had an opportunity to file a pro se
response to the Anders brief, we have taken no action on Mr. Ray’s request to
1
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
withdraw. 2 On August 2, 2010, attorney Mark D. Scott filed a short document in this
court entitled “notice of attorney.” By the document, Mr. Scott states he has been
retained to represent appellant in his two appeals. 3 Although the document contains a
certificate reflecting service on the Tarrant County Criminal District Attorney, neither the
document nor Mr. Scott’s cover letter to our clerk indicates that Mr. Ray was provided a
copy.
The trial court is responsible for appointing counsel to represent indigent
defendants, Tex. Code Crim. Proc. Ann. art. 1.051(d) (Vernon Supp. 2009), and
possesses the authority to relieve or replace appointed counsel on a finding of good
cause. Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (Vernon Supp. 2009). See Meza v.
State, 206 S.W.3d 684 (Tex.Crim.App. 2006). Under some circumstances, it is
appropriate for the trial court to exercise the authority to appoint or substitute counsel,
even after the appellate record has been filed. Id. at 688. Notwithstanding the notice
filed by Mr. Scott, Mr. Ray remains appellant’s counsel on appeal “until charges are
dismissed, the defendant is acquitted, appeals are exhausted, or [Mr. Ray] is relieved of
his duties by the court or replaced by other counsel after a finding of good cause is
entered on the record.” Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (Vernon Supp.
2009).
2
See In re Schulman, 252 S.W.3d 403, 408-409, 409 n.23 (Tex.Crim.App. 2008)
(describing timing and nature of defendant’s pro se response to Anders brief filed by
counsel).
3
According to documents contained in the clerk’s record, Gregory Gray was
appellant’s court-appointed trial counsel. But the docket sheet identifies Mr. Gray and
Mr. Scott as appellant’s counsel. Mr. Scott signed the certification of right of appeal and
notice of appeal as appellant’s counsel.
2
In light of Mr. Scott’s statement to this court that he has been retained to
prosecute appellant’s appeals, we now abate the appeals and remand them to the trial
court for further proceedings.
On remand, the trial court shall use whatever means it finds necessary to
determine the following:
1. Whether appellant still desires to prosecute his appeals;
2. Whether Mr. Scott has been retained to represent appellant in the two
appeals;
3. Whether Mr. Ray desires to be relieved of his duties as appellate counsel
in light of Mr. Scott’s representation, and if so, good cause exists to relieve
Mr. Ray of his duties;
4. If Mr. Scott is to be substituted for Mr. Ray as appellant’s counsel, whether
appellant’s consent to the substitution properly has been obtained; and,
5. Any additional issues the trial court finds material to ensuring appellant
receives effective assistance of counsel.
If the trial court finds that Mr. Scott has been retained to represent appellant, that
appellant properly has consented to the substitution of counsel, and that Mr. Ray
desires to withdraw, the trial court may allow Mr. Ray to withdraw as counsel.
Concerning its resolution of the foregoing issues, the trial court shall execute findings of
fact and conclusions of law, and shall cause its findings, conclusions, and any orders
the court signs to be included in supplemental clerk’s records to be filed with the clerk of
this court by September 10, 2010.
3
It is so ordered.
Per Curiam
Do not publish.
4