Mauricio Izaguirre v. State
01-16-00486-CR
| Tex. App. | Jul 19, 2016Background
- Appellant Mauricio Izaguirre pleaded guilty (no agreed punishment) to murder; judge sentenced him to 35 years on April 4, 2016. Trial court certified right to appeal as to punishment.
- Appellant filed a pro se notice of appeal; appellate docket initially showed retained trial counsel Mark Christopher Thering as "to be determined."
- Reporter noted a record existed but no request/payment had been received to prepare the reporter's record.
- Appellant filed pro se motions (extension and appointment of appellate counsel). Trial docket showed retained counsel had not filed a withdrawal order in the trial court.
- Because no trial-court order permitted withdrawal, the court held retained counsel remains appellant’s counsel and dismissed appellant’s pro se motions as moot; but counsel did not sign the notice of appeal, indicating counsel may not intend to handle the appeal.
- The Court sua sponte abated the appeal and remanded for a hearing to determine whether appellant wishes to pursue the appeal, indigence, counsel’s status, possible substitution or deadlines for record requests, and to enter written findings and orders.
Issues
| Issue | Izaguirre's Argument | State's Argument | Held |
|---|---|---|---|
| Whether appellant may proceed pro se while retained trial counsel remains of record | Appellant sought appointment of appellate counsel or permission to proceed pro se | Trial counsel remains counsel until the trial court permits withdrawal | Pro se motions dismissed as moot; hybrid representation not allowed while retained counsel remains of record |
| Whether retained trial counsel is relieved without a trial-court withdrawal order | Implied that counsel need not sign notice to withdraw from appeal | Withdrawal requires a trial-court order after good-cause finding | Trial counsel remains counsel until the trial court grants withdrawal on the record |
| Whether the appeal should be abated for a hearing to resolve counsel status and appellate prosecution | Appellant requested extension and appellate counsel appointment | Court must resolve representation and record-request deadlines before appeal proceeds | Appeal abated; trial court ordered to hold an immediate hearing and make written findings/orders |
| What procedures/deadlines should follow if counsel remains or if counsel is removed | Appellant sought appointment of counsel or to proceed pro se | If counsel remains, court must set deadline for counsel to request clerk/reporter records; if removed, appoint new counsel if indigent | Trial court directed to determine indigence, good cause for withdrawal, set deadlines (≤30 days) or appoint substitute counsel, and file supplemental records |
Key Cases Cited
- Whitehead v. State, 130 S.W.3d 866 (Tex. Crim. App. 2004) (attorney remains counsel until court permits withdrawal)
- Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003) (withdrawal requires trial-court order and finding of good cause)
- Robinson v. State, 240 S.W.3d 919 (Tex. Crim. App. 2007) (no hybrid representation; pro se motions dismissed when counsel remains)
- Goffney v. State, 843 S.W.2d 582 (Tex. Crim. App. 1992) (procedures governing counsel substitution and appellate representation)
- Hawkins v. State, 613 S.W.2d 720 (Tex. Crim. App. 1981) (court duties when resolving counsel status and defendant’s waiver of counsel)