Javier Noel Campos v. State ( 2015 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Javier Noel Campos v. The State of Texas
Appellate case numbers: 01-13-00415-CR; 01-13-00416-CR; 01-13-00417-CR
Trial court case numbers: 1328806; 1328807; 1308988
Trial court: 184th District Court of Harris County
On January 13, 2015, this Court issued its opinion affirming the judgment of the trial
court. See Campos v. State, 458 S.W.3d 120 (Tex. App.—Houston [1st Dist.] 2015, pet.
granted). Appellant’s appointed counsel withdrew from representation, and appellant filed a pro
se petition for discretionary review (“PDR”). The Court of Criminal Appeals ultimately granted
appellant’s PDR, vacated our judgment, and remanded the case to this Court for reconsideration
of one issue. See Campos v. State, 466 S.W.3d 181 (Tex. Crim. App. 2015) (per curiam).
This Court subsequently set a briefing schedule for any supplemental briefs that the
parties wished to file on remand. Appellant, acting pro se, filed a supplemental brief on
September 25, 2015. The State has not yet filed a supplemental brief on remand.
On October 6, 2015, appellant filed a pro se motion for appointment of counsel on
appeal, arguing that he is indigent and that he needs the assistance of counsel “because a
pertinent question of law has been raised.”
An indigent appellant is entitled to assistance of counsel in filing an appellate brief in a
case on remand from the Court of Criminal Appeals. See Reich-Bacot v. State, 952 S.W.2d 542,
543 (Tex. Crim. App. 1997) (per curiam). When a case is remanded from the Court of Criminal
Appeals to an intermediate appellate court, the appellant “stands in the same position as he did
when the initial appeal was filed,” and, thus, “the appellate rules apply just as though the appeal
were on original submission.” Theus v. State, 863 S.W.2d 489, 491 (Tex. Crim. App. 1993) (per
curiam); Robinson v. State, 790 S.W.2d 334, 335 (Tex. Crim. App. 1990) (per curiam); Ex parte
Lopez, 763 S.W.2d 427, 429 (Tex. Crim. App. 1989) (“The decision by this Court to remand the
cause to the Court of Appeals for Almanza analysis reinstated the status of said cause to the first
level of appeal, a stage of proceedings in which applicant had the right to appointed counsel if he
was indigent at the time of the remand.”). “In the absence of any brief by counsel or inquiry by
the Court of Appeals it must be presumed that an indigent appellant was not represented by
counsel.” Robinson, 790 S.W.2d at 336. The question of whether an appellant will succeed on
the merits on remand is not relevant to this inquiry. Id.
Here, when the Court of Criminal Appeals remanded this case to this Court, appellant
stood in the same position that he did when his initial appeal was filed. Appellant has been
indigent throughout the course of these proceedings, and there is no indication that his indigency
status has changed since we first considered this case on original submission. Appellant is
entitled to effective assistance of counsel in filing a supplemental appellate brief on remand.
See, e.g., Reich-Bacot, 952 S.W.2d at 543. Appellant’s motion for appointment of counsel is
granted.
Therefore, we abate the appeal and remand for the trial court to immediately appoint
counsel to prosecute appellant’s appeal on remand. See TEX. CODE CRIM. PROC. ANN. art.
1.051(d) (Vernon Supp. 2014) (providing right for eligible indigent defendant to have trial court
appoint counsel to represent him in certain appellate proceedings). The trial court’s order
appointing counsel for appellant must be filed in a supplemental clerk’s record with this
Court no later than October 29, 2015.
The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental record
containing the trial court’s order appointing appellate counsel is filed in this Court. This Court
will also consider a motion to reinstate filed by either party. Appellant’s supplemental brief on
remand will be due thirty days from the date this appeal is reinstated. If the State wishes to file a
supplemental brief in response, it is due thirty days from the date appellant’s counsel files
appellant’s brief.
It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes
Acting individually Acting for the Court
Date: October 15, 2015