                                 COURT OF APPEALS FOR THE
                            FIRST DISTRICT OF TEXAS AT HOUSTON

                                             ORDER

Appellate case name:      Tricia Rene Evans v. The State of Texas

Appellate case number:    01-12-00484-CR

Trial court case number: 1783495

Trial court:              County Criminal Court at Law No. 7 of Harris County

        Appellant was charged by information with the misdemeanor offense of assault against a
family member. 1 On September 27, 2011, the trial court found appellant indigent and found that
appointment of counsel was in the interest of justice. Also on September 27, 2011, appellant
posted a surety bond in the amount of $5,000. On September 28, 2011, appellant’s attorney filed
a motion to withdraw, stating that appellant had sufficient resources to hire an attorney. On
October 24, 2011, Brock White filed a notice of appearance on appellant’s behalf, as retained
counsel. On April 10, 2012, a jury found appellant guilty. That same day, the trial court
sentenced appellant to one year in the county jail, probated for one year, and assessed conditions
of community supervision, in accordance with an agreement between appellant and the State. 2
Also on April 10, 2012, the trial court executed a certification of appellant’s right of appeal,
which indicates that this case “is not a plea-bargain case, and the defendant has the right of
appeal.” Appellant, acting pro se, filed a notice of appeal on May 10, 2012. When appellant
filed her notice of appeal, the trial court raised appellant’s bail amount to $7500. Although the
record contains no indication that appellant’s counsel moved to withdraw or was permitted to
withdraw, no counsel has appeared on appellant’s behalf in this appeal.

        On August 1, 2012, appellant filed a “Motion to Withdraw Appeal.” In her motion,
appellant states: (1) “That was the nature of the appeal, to see if testimonies could be reviewed
and/or this taken off of my record after probation. I was just informed on Monday, July 31, 2012
that a warrant was to be issued out for my arrest because of a bond that was not paid. The
attorney who represented me on this case was not the attorney who filed the appeal. I was
completely unaware of any additional funds that were supposed to accompany the appeal”; (2) I


1      See TEX. PENAL CODE ANN. § 22.01(a) (West 2011); TEX. FAM. CODE ANN. § 71.003
       (West 2008).

2      The agreement on sentencing did not include any waiver of the right to appeal.
was also just informed that the terms of my probation were supposed to be suspended and I was
unaware of that as well”; (3) “I was informed that I should either produce the bond fund amount
of $7500 or withdraw the Appeal [sic]. I do not have the funds right now, . . . so I have no
choice, but to withdraw the Appeal [sic]”; and (4) I am asking the courts to consider this motion
for withdrawal and approve the continuance of my probation as it was granted on April 10,
2012.” Appellant also states that she “wanted the Appeal [sic].”

         By filing a motion to withdraw her appeal, appellant is effectively seeking to waive her
right to appeal. Appellant has the right to waive her right to appeal. See TEX. CODE CRIM. PROC.
art. 1.14 (West 2005); Ex parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App. 2009). Any
such waiver, however, must be made voluntarily, knowingly, and intelligently, and may not be
the product of duress or coercion. See Broadway, 301 S.W.3d at 697; Ex parte Tabor, 565
S.W.2d 945, 946 (Tex. Crim. App. 1978). Furthermore, appellant is entitled to be represented by
counsel on appeal unless appellant voluntarily and intelligently waives the right to counsel. 3 See
TEX. CODE CRIM. PROC. art. 1.051(a), (f) (West Supp. 2011). Moreover, appellant’s trial
counsel’s duties to appellant were not complete upon the rendition of the verdict by the jury;
counsel had “the duty, obligation and responsibility to consult with and fully to advise his client
concerning meaning and effect of the judgment rendered by the court, his right to appeal from
that judgment, the necessity of giving notice of appeal and taking other steps to pursue an appeal,
. . . and delineating advantages and disadvantages of appeal.” Ex parte Axel, 757 S.W.2d 369,
374 (Tex. Crim. App. 1988).

        Here, the record is unclear as to whether appellant is voluntarily, knowingly, and
intelligently seeking to withdraw her appeal, and it is unclear as to whether appellant’s counsel
has fully advised her regarding the steps necessary to pursue an appeal, the effect of the
judgment against her, and the advantages and disadvantages of appealing the verdict. Of
particular concern are appellant’s statements in her motion to withdraw the appeal that she was
“completely unaware” of the necessity of posting an appellate bond, that she was unaware that
her “probation was supposed to be suspended,” that she was informed to “either produce the
bond fund amount of $7500 or withdraw the [a]ppeal,” and that she has “no choice, but to
withdraw the [a]ppeal.” These statements suggest that appellant has not been adequately advised
regarding her appeal and that appellant is not voluntarily seeking to withdraw her appeal.

        We, therefore, abate this appeal and remand the cause to the trial court for further
proceedings. On remand, the trial court shall conduct a hearing within 15 days of the date of this
order at which a representative of the Harris County District Attorney’s Office and appellant’s
trial counsel, Brock White, shall be present. Appellant shall also be present for the hearing in
person or, if appellant is incarcerated, at the trial court’s discretion, appellant may participate in
the hearing by use of a closed-circuit video teleconferencing system that provides for a
simultaneous compressed full motion video and interactive communication of image and sound. 4

3      An appellant who understands the importance of legal counsel may constructively
       abandon the right to counsel by failing to employ a lawyer after being given sufficient
       opportunity to retain one, but that is not the situation in this case. See Oliver v. State, 872
       S.W.2d 713, 716 (Tex. Crim. App. 1994).

4      On request of appellant, appellant and his counsel shall be able to communicate privately
       We direct the trial court to:

   1) Determine, after appellant has an adequate opportunity to confer with counsel, whether
      appellant still wishes to pursue this appeal;
   2) If appellant wishes to pursue this appeal, determine whether appellant’s counsel, Brock
      White, intends to represent appellant on appeal or whether counsel should be permitted to
      withdraw;
   3) If counsel is permitted to withdraw, determine whether appellant is now indigent; and
          a. If so, appoint appellate counsel;
          b. If not, determine whether appellant, after being admonished regarding the dangers
             and disadvantages of self-representation, is knowingly and voluntarily waiving
             her right to counsel on appeal and is proceeding pro se, and
                   i. If so, obtain a written waiver of the right to counsel from appellant; or
                  ii. If not, provide appellant with a deadline for hiring appellate counsel.

See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f) (granting right to representation by
counsel in criminal matters; entitling indigent defendant in criminal proceeding to appointed
counsel; entitling indigent defendant to appointed counsel for appeal to court of appeals; and
authorizing written waiver of right to counsel if made voluntarily and intelligently); TEX. CODE
CRIM. PROC. ANN. art. 1.14 (granting right to waive any right in criminal prosecution);
Broadway, 301 S.W.3d at 697 (requiring waiver of right to counsel to be made voluntarily,
knowingly, and intelligently); Axel, 757 S.W.2d at 374 (imposing duties on counsel after trial is
concluded, including duty to advise client regarding appellate matters); cf. TEX. CODE CRIM.
PROC. ANN. art. 1.051(g) (requiring court to advise defendant in trial court of dangers and
disadvantages of self-representation prior to proceeding to trial).

        The trial court shall have a court reporter, or court recorder, record the hearing. The trial
court clerk is directed to file a supplemental clerk’s record containing the trial court’s findings,
recommendations, and orders with this Court within 20 days of the date of this order. The court
reporter is directed to file the reporter’s record of the hearing within 20 days of the date of this
order. If the hearing is conducted by video teleconference, a certified recording of the hearing
shall also be filed in this Court within 20 days of the date of this order.

        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 records that comply
with our order are filed with the Clerk of this Court. The court coordinator of the trial court shall
set a hearing date and notify the parties.


Judge’s signature:/s/ Justice Terry Jennings
                    Acting individually  Acting for the Court

Date: August 17, 2012


       without being recorded or heard by the trial court or the attorney representing the State.
