Julio Alvarado v. State , 562 S.W.3d 450 ( 2014 )

Order issued August 27, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00894-CR
NO. 01-13-00895-CR
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JULIO ALVARADO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Case Nos. 1325689 & 1325690
ORDER OF ABATEMENT AND REMAND
Appellant’s appointed counsel, J. Sidney Crowley, filed a motion to
withdraw and the accompanying brief required by Anders v. California, 386 U.S.
738, 87 S. Ct. 1396 (1967). Purporting to act as appellant’s retained counsel,
attorney Cory Roth filed “Julio Alvarado’s Response to His Appointed Counsel’s
Anders Brief.” On July 24, 2014, because two attorneys made appearances
claiming to represent appellant, this Court ordered Mr. Roth to either file a motion
to substitute as counsel or present the court with authority permitting a retained
attorney to file a response to an Anders brief. On July 25, 2014, Mr. Roth filed a
motion to be substituted as counsel for appellant.
The trial court is responsible for appointing counsel to represent indigent
defendants, TEX. CODE CRIM. PROC. ANN. art. 1.051(d) (West Supp. 2013), 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) (West Supp. 2013).
Notwithstanding the motion to withdraw, Mr. Crowley remains appellant’s counsel
on appeal “until charges are dismissed, the defendant is acquitted, appeals are
exhausted, or [he] 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).
In light of Mr. Crowley’s motion to withdraw and Mr. Roth’s motion to be
substituted as appellant’s counsel, we abate the appeal and remand the cause to the
trial court for further proceedings. On remand, we direct the trial court to
determine the following:
1. Whether appellant still desires to prosecute his appeal;
2. Whether Mr. Roth has been retained to represent appellant in his
appeal;
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3. Whether Mr. Crowley desires to be relieved of his duties as appellate
counsel in light of Mr. Roth’s representation, and if so, good cause
exists to relieve Mr. Crowley of his duties;
4. If Mr. Roth is to be substituted for Mr. Crowley, whether appellant’s
consent to substitute was properly obtained; and
5. Any additional issues the trial court finds material to ensuring
appellant receives effective assistance of counsel on appeal.
If the trial court finds that Mr. Roth has been retained to represent appellant, that
appellant properly consented to the substitution of counsel, and that Mr. Crowley
desires to withdraw, then the trial court may allow Mr. Crowley to withdraw as
counsel.
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 a supplemental clerk’s record. Should the trial court conduct a hearing of this
matter, the evidence and argument presented shall be included in a supplemental
reporter’s record. The trial court shall cause the supplemental clerk’s records and
the supplemental reporter's record, if any, to be filed with the clerk of this court
within twenty days from the date of this order.
Should the trial court authorize the withdrawal of Mr. Crowley and
substitution of Mr. Roth as appellant’s appellate counsel, appellant’s appellate
brief shall be due within thirty days from the date the cases are reinstated.
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It is so ordered.
Michael Massengale
Justice
Panel consists of Justices Massengale, Brown, and Huddle
Publish. TEX. R. APP. P. 47.2(b).
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