Guadalupe Vasquez v. State ( 2005 )

NO. 07-04-0482-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JANUARY11, 2005
______________________________
GUADALUPE VASQUEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2004-404954; HONORABLE CECIL G. PURYEAR, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
ABATEMENT AND REMAND
Following a plea of not guilty, appellant Guadalupe Vasquez was convicted by a jury
of aggravated assault on a public servant and punishment was assessed at 99 years
confinement. The appellate record has been filed; appellant’s brief was due on December
3, 2004, but has yet to be filed. Attorney of record, Richard L. Wardroup, was notified by
letter of the deficiency and in response, attorney Jesse Mendez filed a motion to substitute
counsel and a motion for extension of time in which to file appellant’s brief. We abate the
appeal and remand the cause for further proceedings.
According to the clerk’s record, appellant has been represented by at least four
court-appointed attorneys, the fourth being Wardroup. Mendez represents in the motion
to substitute counsel that appellant desires to retain him and that Wardroup does not
object.
The trial court has the responsibility for appointing counsel to represent indigent
defendants, as well as the authority to relieve or replace counsel. Tex. Code Crim. Proc.
Ann. art. 1.051(d) (Vernon Supp. 2004); see also Enriquez v. State, 999 S.W.2d 906, 907
(Tex.App.–Waco 1999, no pet.). Further, the trial court retains authority to appoint or
substitute counsel even after the appellate record has been filed. Enriquez, 999 S.W.2d
at 908. Considering that Wardroup was appointed by the trial court and regardless of
whether appellant can now retain his own attorney, we now abate the appeal and remand
the cause to the trial court for consideration of the motion to substitute.
Upon remand the trial court shall immediately cause notice of a hearing to be given
and, thereafter conduct a hearing to determine the following:
1. whether to grant the motion to substitute Jesse Mendez as attorney
of record and permit Richard L. Wardroup to withdraw; and if so,
2. whether appellant still desires to prosecute this appeal.
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The trial court shall also cause a hearing to be transcribed. Should it be determined that
appellant desires to continue the appeal, then the trial court shall also take such measures
as may be necessary to assure appellant effective assistance of counsel. An order
granting the motion to substitute shall include the attorney’s name, mailing address,
telephone number, fax number, and state bar number. Tex. R. App. P. 6.5(d).
The trial court shall execute findings of fact, conclusions of law, and such orders as
the court may enter regarding the aforementioned issues and cause its findings and
conclusions to be included in a supplemental clerk’s record. A supplemental reporter’s
record of the hearing shall also be included in the appellate record. The trial court shall file
the supplemental clerk’s record and the supplemental reporter’s record with the Clerk of
this Court by Friday, February 11, 2005.
The Court declines to consider the motion filed by Jesse Mendez to extend time in
which to file appellant’s brief as he is not the attorney of record. However, the Court sua
sponte grants appellant 30 days from the date the supplemental record is filed in which to
file his brief.
It is so ordered.
Per Curiam
Do not publish.
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