Dustin James Beal v. State ( 2015 )

Order filed April 23, 2015
In The
Eleventh Court of Appeals
____________
No. 11-15-00083-CR
__________
DUSTIN JAMES BEAL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Coleman County, Texas
Trial Court Cause No. 2480
ORDER
On April 9, 2015, court-appointed counsel for Dustin James Beal, Appellant,
filed a notice of appeal in this case. The next day, the trial court permitted the
attorney to withdraw as Appellant’s counsel because the attorney was “not an
approved indigent defense counsel for appellate matters in Coleman County.” The
trial court did not, however, appoint an attorney to represent Appellant on appeal
but, instead, directed that all notices shall be sent to Appellant at the jail in Ballinger.
Appellant has now filed in this court a pro se request for a copy of the record. In his
request, Appellant expresses a desire to have an attorney review the record. We
abate the appeal.
The documents on file in this case reflect that Appellant’s sentence was
imposed on April 7, 2015, and that court-appointed trial counsel was permitted to
withdraw on April 10 after filing a notice of appeal on behalf of Appellant. The
thirty-day period following sentencing—the time in which to file a motion for new
trial or a notice of appeal—is a critical stage of the proceedings during which an
indigent defendant has a constitutional right to counsel. Cooks v. State, 240 S.W.3d
906, 910–11 (Tex. Crim. App. 2007); Massingill v. State, 8 S.W.3d 733, 736–37
(Tex. App.—Austin 1999, order); see Ward v. State, 740 S.W.2d 794, 798 (Tex.
Crim. App. 1987). Consequently, when “court-appointed counsel was permitted to
withdraw, either an inquiry should have been made as to whether appellant was
knowingly and voluntarily waiving his right to appointed counsel on appeal, or
appellant should have been afforded appointed counsel on appeal.” Lopez v. State,
486 S.W.2d 559, 560 (Tex. Crim. App. 1972). Once the trial court makes a
determination that a defendant is indigent and entitled to appointed trial counsel,
there is a presumption that the defendant will remain indigent unless shown to be
otherwise. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2014). Thus,
when a trial court permits court-appointed trial counsel to withdraw, it should, at that
time, appoint substitute counsel. Massingill, 8 S.W.3d at 737.
We abate this appeal and remand the cause to the trial court so that it may
determine the following:
1. Whether Appellant desires to prosecute his appeal;
2. Whether Appellant is indigent;
3. If not indigent, whether Appellant has retained counsel for this appeal; and
2
4. If indigent, whether Appellant desires to have counsel appointed to
represent him in this appeal or whether, after being warned of the dangers
and disadvantages of self-representation, Appellant competently and
intelligently chooses to exercise the right to represent himself.
The trial court is directed to make appropriate findings and recommendations and to
appoint counsel if appropriate. The trial court clerk is directed to prepare and
forward to this court a supplemental clerk’s record containing the findings,
recommendations, and any orders of the trial court. If a hearing is held, the court
reporter is directed to prepare and forward to this court the reporter’s record from
the hearing. Since the time for filing a motion for new trial expires on May 7, these
records are due to be filed in this court on or before May 4, 2015.
The appeal is abated.
PER CURIAM
April 23, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
3