                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS



    OMAR CALDERON,                                         §
                                                                                 No. 08-20-00139-CR
                      Appellant,                           §
                                                                                    Appeal from the
    v.                                                     §
                                                                                  450th District Court
                                                           §
    THE STATE OF TEXAS,                                                        of Travis County, Texas
                                                           §
                      Appellee.                                               (TC# D-1-DC-20-904007)
                                                           §


                                                    ORDER

         Pending before us now is a “Motion for Leave to Withdraw as Appellate Counsel and

Substitution of Counsel,” filed on June 15, 2020 (pre-transfer), and a “Second Motion for Leave

to Withdraw as Appellate Counsel and Substitution of Counsel,” filed on July 22, 2020 (post-

transfer).1 Both motions assert that Appellant has since retained a new attorney, Keith S. Hampton,

and asks us to permit appointed counsel to withdraw as counsel for Appellant, and to permit Keith

S. Hampton to be substituted as appellate counsel pursuant to Rule 6.5 of the Texas Rules of


1
  On March 31, 2020, the Supreme Court of Texas issued a transfer order (Misc. Docket No. 20-9048), which
transferred Appellant’s case from the Third Court of Appeals in Austin to this Court. On June 10, 2020, before the
actual transfer had yet occurred, the Reporter’s Record of this cause was filed in the Third Court of Appeals.
Thereafter, on July 21, 2020, the case records were transferred to this Court and the Clerk of the Court of Appeals for
the Third District certified the transfer. Subsequently, the District Clerk of Travis County filed the Clerk’s Record
with this Court on July 28, 2020.
Appellate Procedure. Both motions are signed solely by attorney Linda Icenhauer-Ramirez.2 For

the reasons that follow, we will abate this appeal for 30 days.

                                                  DISCUSSION

         In her Motion for Leave to Withdraw as Appellate Counsel and Substitution of Counsel,

Appellant’s counsel asserts that the trial court has given permission to withdraw. However, our

record contains no order from the trial court permitting such withdrawal of appointed counsel.3

         Pursuant to Rule 25.2(g) of the Texas Rules of Appellate Procedure, proceedings in the

trial court are suspended, once the record has been filed in the court of appeals, until the trial court

receives the appellate court’s mandate. TEX. R. APP. P. 25.2(g); see also Lopez v. State, 18 S.W.3d

637, 639 (Tex. Crim. App. 2000). Nonetheless, by its own terms, this rule is subject to exceptions.

TEX. R. APP. P. 25.2(g) (trial court proceedings are suspended “except as provided otherwise by

law or by these rules”). In Meza v. State, 206 S.W.3d 684, 688 (Tex. Crim. App. 2006), the Court



2
 We construe the second motion as merely supplementing the initial motion as both filings request the same relief.
Following a jury trial, Appellant Omar Calderon was convicted on two counts of aggravated sexual assault of a child
and three counts of Indecency with a Child by Contact. On March 10, 2020, the trial court entered a judgment of
conviction for each of the five counts. Appellant filed a notice of appeal and motion for new trial, respectively, on
March 18, 2020, signed by attorney Linda Icenhauer-Ramirez, who was appointed as counsel for Appellant on March
11, 2020.

3
  We are reluctant to grant withdrawal under these circumstances without a copy of the trial court’s withdrawal order
given a history of successive appointments in this case. We note, in this instance, the record shows that Appellant has
had several changes of representation to date. Initially, Appellant was represented by attorney James (Andy) Casey,
who was assigned on July 2, 2018, after the trial court entered a finding of indigency based on Appellant meeting
eligibility requirements. Thereafter, on September 25, 2018, attorney Jason P. Ortega filed a motion to substitute
counsel indicating that he had been employed to represent Appellant given that Appellant no longer wanted to be
represented by attorney Andy Casey. On September 25, 2018, the trial court entered an order permitting the withdrawal
of Andy Casey and the substation of Jason P. Ortega as counsel of record.

On October 22, 2019, attorney Jason Ortega filed a motion to withdraw as counsel indicating that Appellant had failed
to comply with the terms of his employment agreement. The trial court found there was good cause for withdrawal of
Appellant’s attorney and permitted his withdrawal. Subsequently, Appellant again submitted an Indigence Form which
indicated that he met eligibility requirements. After entering a finding of indigency, the trial court then assigned
attorney Jorge Vela to represent Appellant on October 22, 2019. Thereafter, on February 21, 2020, the trial court
entered another finding of indigency and assigned attorney Angelica Cogliano to represent Appellant. Thereafter, both
attorney Jorge Vela and attorney Angelica Cogliano represented Appellant throughout pretrial proceedings and the
jury trial of the cause. On March 11, 2020, following entry of judgments, the trial court entered another finding of
indigency and appointed attorney Linda Icenhauer-Ramirez to represent Appellant.

                                                        -2-
of Criminal Appeals recognized that article 26.04 of the Code of Criminal Procedure constitutes

such an exception to suspension of further trial court proceedings, when its provisions are

applicable. Specifically, when defense counsel has been appointed to provide representation in a

criminal case, Meza recognized that the Legislature has entrusted to the trial court the

responsibility over appointed counsel throughout counsel’s representation. Id.

       Two provisions of article 26.04 are particularly relevant here, subparts (c) and (j)(2), which

provide as follows:

       (c) Whenever a court . . . determines for purposes of a criminal proceeding that a
       defendant charged with or appealing a conviction of a felony or a misdemeanor
       punishable by confinement is indigent or that the interests of justice require
       representation of a defendant in the proceeding, the court . . . shall appoint one or
       more practicing attorneys to represent the defendant in accordance with this
       subsection and the procedures adopted under Subsection (a)[.]

TEX. CODE CRIM. PROC. ANN. art. 26.04(c).

       (j) An attorney appointed under this article shall:

       (2) represent the defendant until charges are dismissed, the defendant is acquitted,
           appeals are exhausted, or the attorney is permitted or ordered by the court to
           withdraw as counsel for the defendant after a finding of good cause is entered
           on the record[.]

TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2).

       Accordingly, when counsel is appointed by the trial court to represent an indigent

defendant on appeal, it remains the trial court’s responsibility to relieve appointed counsel, or

replace said counsel with other counsel, even after the appellate record has been filed with the

appellate court. See Enriquez v. State, 999 S.W.2d 906, 907-08 (Tex. App. – Waco 1999, no pet.);

see also Meza, 206 S.W.3d at 686. Moreover, there is no limitation on the time frame during which

the trial court has authority to make the appointment or substitution of counsel in such

circumstance. Enriquez, 999 S.W.2d at 908. Thus, when appointed counsel seeks to withdraw from

representation, Enriquez lays out the required course of action, which we also adopt:
                                               -3-
        If [Appellant] is indigent, the trial court has the authority through the Code of
        Criminal Procedure to relieve [appointed counsel] of his [or her] duties and appoint
        new counsel for [Appellant’s] appeal. . . . If [Appellant] wants to retain new
        appellate counsel, the trial court has the authority to replace the appointed counsel.

Id.

        In Meza, the Court of Criminal Appeals approved of the reasoning of Enriquez, which

found that article 26.04 applied where appointed counsel sought to withdraw and substitute other

counsel to pursue an appeal. Meza, 206 S.W.3d at 688. The Court described, “it is fitting that a

case should be abated to the trial court for substitution of counsel, just as we have held is the correct

procedure whenever an Anders brief is not well taken.” Id.

                                  CONCLUSION AND ORDER

        Consistent with the procedure set out in Meza and Enriquez, we will ABATE this appeal

for 30 DAYS to allow the trial court to determine whether there is good cause to allow appointed

counsel to withdraw, and, if so, to enter an order granting the withdrawal if no such order has yet

issued. If a withdrawal order has already been issued, or one is subsequently entered, Appellant is

ordered to supplement the appellate record with the appropriate documentation of such

substitution. If the substitution is done in proper form and the proper motion is then made under

Rule 6.5(d) of the Texas Rules of Appellate Procedure, the abatement will be lifted and this Court

will take further action as appropriate.

        IT IS SO ORDERED THIS 7TH DAY OF AUGUST, 2020.


                                                PER CURIAM

Before Alley, C.J., Rodriguez, and Palafox, JJ.




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