

NO. 07-10-00281-CR, 07-10-00282-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL D
 

AUGUST
10, 2010
 

 
JAMICHEAL LAMARR HILL, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 396TH DISTRICT COURT OF TARRANT
COUNTY;
 
NO. 1128038D, 1165716D; HONORABLE GEORGE W. GALLAGHER, JUDGE

 

 
Before QUINN,
C.J., and CAMPBELL and PIRTLE, JJ.
 
 
ORDER OF ABATEMENT AND
REMAND
            Through
two cases on appeal, appellant Jamicheal Hill
challenges the judgments of the trial court. 
On a finding that appellant lacked the means to employ appellate
counsel, the trial court appointed William H. “Bill” Ray to represent him on
appeal.  In both cases, Mr. Ray filed a
motion to withdraw from representation supported by an Anders brief.[1]  Because appellant has not yet had an
opportunity to file a pro se response
to the Anders brief, we have taken no
action on Mr. Ray’s request to withdraw.[2]  On August 2, 2010, attorney Mark D. Scott
filed a short document in this court entitled “notice of attorney.” By the
document, Mr. Scott states he has been retained to represent appellant in his
two appeals.[3]  Although the document contains a certificate
reflecting service on the Tarrant County Criminal District Attorney, neither
the document nor Mr. Scott’s cover letter to our clerk indicates that Mr. Ray
was provided a copy.
The trial court is responsible for
appointing counsel to represent indigent defendants, Tex. Code Crim. Proc. Ann.
art. 1.051(d) (Vernon Supp. 2009), 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) (Vernon Supp. 2009).  See
Meza v. State, 206 S.W.3d 684 (Tex.Crim.App.
2006).  Under some circumstances, it is
appropriate for the trial court to exercise the authority to appoint or
substitute counsel, even after the appellate record has been filed.  Id. at 688. 
Notwithstanding the notice filed by Mr. Scott, Mr. Ray remains
appellant’s counsel on appeal “until charges are dismissed, the defendant is
acquitted, appeals are exhausted, or [Mr. Ray] 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) (Vernon Supp.
2009). 
In light of Mr. Scott’s statement to
this court that he has been retained to prosecute appellant’s appeals, we now
abate the appeals and remand them to the trial court for further proceedings.
On remand, the trial court shall use
whatever means it finds necessary to determine the following:
1.           
Whether
appellant still desires to prosecute his appeals;
 
2.           
Whether
Mr. Scott has been retained to represent appellant in the two appeals;
 
3.           
Whether
Mr. Ray desires to be relieved of his duties as appellate counsel in light of
Mr. Scott’s representation, and if so, good cause exists to relieve Mr. Ray of
his duties;
 
4.           
If
Mr. Scott is to be substituted for Mr. Ray as appellant’s counsel, whether
appellant’s consent to the substitution properly has been obtained; and,
 
5.         Any
additional issues the trial court finds material to ensuring appellant receives
effective assistance of counsel.
If the trial court finds that Mr.
Scott has been retained to represent appellant, that appellant properly has
consented to the substitution of counsel, and that Mr. Ray desires to withdraw,
the trial court may allow Mr. Ray to withdraw as counsel. Concerning its
resolution of the foregoing issues, 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 supplemental clerk’s records to be
filed with the clerk of this court by September 10, 2010.
 
It is so ordered.
 
                                                                                                Per Curiam
 
 
Do not
publish.




[1]  Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
 


[2] See In re Schulman, 252 S.W.3d 403, 408-409, 409 n.23 (Tex.Crim.App. 2008) (describing
timing and nature of defendant’s pro se
response to Anders brief filed by
counsel).
 


[3] According to documents contained in the clerk’s
record, Gregory Gray was appellant’s court-appointed trial counsel.  But the docket sheet identifies Mr. Gray and
Mr. Scott as appellant’s counsel.  Mr.
Scott signed the certification of right of appeal and notice of appeal as
appellant’s counsel.


