Arthur Kelvin Lovell v. the State of Texas

NUMBERS 13-21-00115-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ARTHUR KELVIN LOVELL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 183rd District Court
of Harris County, Texas.
ORDER OF ABATEMENT
Before Justices Longoria, Hinojosa, and Silva
Order Per Curiam
This cause is before the Court on appellant’s pro se motion for appointment of
counsel. The Court granted appellant’s court appointed counsel’s three motions for
extension of time to file a brief. The final extension of time was granted by order and
appellant’s counsel was instructed that no further extensions of time will be granted
absent new and exigent circumstances and the brief was due to be filed on or before
December 27, 2021. On December 30, 2021, the Clerk of the Court sent notice to
appellant’s counsel that the brief was now past due. Finally, on January 12, 2022, an
Anders brief was filed in this matter. Now, acting pro se, appellant requests new counsel
be appointed claiming he waived certain rights in court not based on sound judgment or
understanding. Appellant requests different counsel to review and proceed with this
appeal.
Appellant is entitled to effective assistance of counsel, and we have a duty to
ensure that appellant’s rights are protected. However, appellant does not have the right
to dictate the counsel of his choosing and appointment of new counsel rests within the
sound discretion of the trial court. Carroll v. State, 176 S.W.3d 249, 255 (Tex. App.—
Houston [1st Dist.] 2004, pet. ref’d). In those circumstances where the appointment of
counsel may be necessary, an appellate court should abate the proceeding to the trial
court for determination of this issue. Accordingly, we carry the motion, abate the appeal,
and remand the cause to the trial court for further proceedings consistent with this order.
Upon remand, the trial court shall determine whether appellant is entitled to court-
appointed counsel. If the trial court determines that new counsel should be appointed, the
name, address, email address, telephone number, and state bar number of newly
appointed counsel shall be included in the order appointing counsel. If the trial court
determines appellant has abandoned this appeal and/or is not entitled to new court-
appointment counsel, it shall issue such findings. The trial court shall further cause its
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findings and/or order to be included in a supplemental clerk’s record to be filed with the
clerk of the court on or before the expiration of thirty days from the date of this order.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
25th day of March, 2022.
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