Jacob Mediano v. State
03-16-00211-CR
| Tex. App. | Nov 4, 2016Background
- Jacob Mediano was convicted and initially appointed counsel by the district court at trial and for appeal after being found indigent.
- Retained counsel (hired by Mediano’s family) later represented Mediano on appeal, then moved to withdraw, saying he found no non-frivolous issues and had prepared an Anders brief for Mediano but did not file it.
- This Court granted retained counsel’s motion to withdraw and extended the appellant’s briefing deadline to November 16, 2016.
- Mediano, proceeding pro se, moved in this Court for appointment of counsel to file his brief on appeal.
- The district court has not made any subsequent finding that Mediano’s financial circumstances materially changed since the original indigency finding.
- The appellate court abated the appeal and remanded to the district court to conduct a Rule 38.8 hearing to determine whether Mediano wishes to pursue the appeal and whether he remains indigent; the appellate court dismissed Mediano’s motion for appointment as moot pending that hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant is entitled to appointed counsel on appeal given prior indigency finding | Mediano requests appointment of counsel to file his brief (claiming need for counsel) | State/record shows prior appointment; district court must determine current indigency before appointing | Abated and remanded for district court to hold hearing to determine desire to appeal and indigency; if indigent, appoint counsel on appeal |
| Whether district court must reassess indigency after retained counsel withdraws | Mediano argues he needs counsel and thus remains indigent | Court notes presumption that indigency continues absent material change; district court must make a current finding | District court must conduct a hearing per Tex. R. App. P. 38.8 to determine indigency and desire to appeal |
| Whether retained counsel could/should have filed an Anders brief | Mediano (implicitly) seeks counsel because retained counsel withdrew without filing brief | Retained counsel claimed he prepared an Anders brief but did not file it because some Texas authorities limit Anders procedures to appointed counsel | Court did not rule on propriety of retained counsel filing Anders brief; focused on needing district-court determination of indigency and representation on appeal |
| Whether appellate court should dismiss Mediano’s motion for appointment of counsel | Mediano seeks appointment now in appellate court | Appellate court must defer to district court’s factfinding on indigency | Motion dismissed as moot; appeal abated and remanded for district-court hearing |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (standards for counsel who finds appeal frivolous)
- Logan v. State, 463 S.W.2d 740 (Tex. Crim. App. 1971) (abating appeal where retained counsel withdrew prior to filing brief)
- Lopez v. State, 283 S.W.3d 479 (Tex. App.—Texarkana 2009) (discussing applicability of Anders to retained counsel)
- Knotts v. State, 31 S.W.3d 821 (Tex. App.—Houston [1st Dist.] 2000) (per curiam order) (same)
- Nguyen v. State, 11 S.W.3d 376 (Tex. App.—Houston [14th Dist.] 2000) (same)