                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 02-08-277-CR

JEREMY URIAH ROSALES                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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            FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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                         MEMORANDUM OPINION 1

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      On May 9, 2006, Appellant Jeremy Uriah Rosales pleaded guilty to the

felony offense of injury to a child, and the trial court sentenced him to five

years’ community supervision. On May 5, 2008, the State filed a motion to

proceed to adjudication of guilt, alleging Rosales had violated the terms and

conditions of his community supervision by failing to (1) report, (2) provide

written proof of community service work, (3) pay the supervision fee, (4) pay


      1
          … See Tex. R. App. P. 47.4.
the crime stopper fee, and (5) provide verification of applying for employment.2

On May 14, 2008, the trial court appointed Tom Allensworth to represent

Rosales at his adjudication hearing.        On July 30, 2008, Allensworth, at

Rosales’s request, filed a motion to withdraw. On August 1, 2008, the trial

court denied the motion.     At the adjudication hearing on August 8, 2008,

Rosales pleaded true to all five of the alleged community supervision violations,

and the trial court sentenced him to twelve years’ confinement. This appeal

followed.

      In his sole issue, Rosales argues that the trial court violated his right to

equal protection by failing to hold a hearing, or to rule, on Allensworth’s motion

to withdraw. Specifically, Rosales claims that

      [a] defendant is incompetent to stand trial if, among other things,
      he cannot properly communicate with counsel. And a defendant
      may discharge appointed counsel if, among other things, he cannot
      properly communicate with counsel. But Texas law requires only
      “more than a scintilla” of evidence of incompetence to trigger a sua
      sponte informal inquiry, while a defendant must affirmatively raise
      a “seemingly substantial complaint” about appointed counsel to be
      entitled to any sort of hearing. No rational basis exists for the
      discrepancy.    The defendant seeking to discharge appointed
      counsel is therefore denied equal protection of the law.




      2
       … This is the State’s second motion to proceed to adjudication. In
March 2007, the State filed its first motion, and the trial court temporarily
revoked Rosales’s community supervision, sentencing him to 122 days’
confinement.

                                        2
      The State takes the position that Rosales is arguing that he was entitled

to a competency hearing. We disagree. We interpret Rosales’s argument to

mean that when a motion to withdraw is filed, the burden required to obtain a

hearing on that motion should be the same as the burden required to obtain a

hearing on competency.

      As the State pointed out, however, on August 1, 2008, the trial court

held a hearing on Allensworth’s motion to withdraw and ordered that it be

denied. Therefore, Rosales has suffered no harm, has no legally cognizable

interest in the outcome, and accordingly we dismiss this appeal as moot. See

Murphy v. Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1183 (1982) (holding

that a case becomes moot when the issues presented are no longer live or the

parties lack a legally cognizable interest in the outcome); see also Pharris v.

State, 165 S.W.3d 681, 688 n. 7 (Tex. Crim. App. 2005).




                                          BOB MCCOY
                                          JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

WALKER, J. concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 18, 2009




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