IN THE

TENTH COURT OF APPEALS

No. 10-06-00133-CR

Kesha Latrice Jenkins,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 05-01970-CRF-361

            Kesha Latrice Jenkins was convicted of robbery and theft in June of 2005.  The Court of Criminal Appeals granted Jenkins an out-of-time appeal pursuant to her application for writ of habeas corpus.  Appointed counsel for Jenkins then timely filed a notice of appeal on May 23, 2006 for Jenkins.

            Everything since then has been unnecessarily delayed.  It took one year and two months for the reporter to file the record.  During that time, letters were sent both to the reporter and to the trial court regarding this Court’s unsuccessful efforts to obtain the reporter’s record.  Further, during this 14 month period, the appeal had to be abated because Jenkins no longer wanted her court-appointed counsel to represent her, and counsel filed a motion to withdraw.  By the time the trial court held the required hearing, Jenkins approved of her attorney again. 

            After requesting and receiving an extension of time to file her brief, Jenkins’ counsel again moved to withdraw as her court appointed attorney in October of 2007 because Jenkins filed a grievance against him.   The appeal was again abated to address the motion to withdraw.  The trial court issued an order in November of 2007 appointing an additional attorney to represent Jenkins.  Although the trial court may have intended to grant counsel’s motion to withdraw, the written order did not order that the original appointed counsel no longer had any duties in the case.  We did not receive a supplemental reporter’s record from this hearing to know what oral orders were made.  Nevertheless, no brief was ever filed by either of these attorneys; and, in January of 2008, the appeal again had to be abated.  At the hearing, the trial court officially allowed the original appointed counsel to withdraw.^[1]  During that hearing, on the record, the counsel appointed in November of 2007 “guaranteed” that he would have a brief filed within 30 days. 

            Counsel nevertheless requested and received an extension of time to file his brief.  But no brief was filed by the extended deadline.  Again, in April of 2008, the appeal was abated. 

            Since the time the appeal was abated, we received a “Motion to Extend Time to File Appellant’s Brief” from Mary Jo Holloway, an attorney different than the second previously appointed attorney.  In the motion, Holloway stated that she was appointed as the substitute appellate attorney at the abatement hearing held on April 18, 2008.  The supplemental clerk’s record of that hearing was filed on May 1, 2008.  I reviewed the supplemental clerk’s record and agree that Holloway was appointed by the trial court to represent Jenkins.  However, also according to the supplemental clerk’s record, the second previously appointed counsel had not been removed as counsel representing Jenkins.  The supplemental reporter’s record, consisting of one page, was filed almost 90 days after the hearing and showed nothing different from the supplemental clerk’s record:  previous counsel had not been removed as counsel for Jenkins.  Therefore, Holloway has been appointed only as additional counsel to represent Jenkins, not as substitute counsel.  See Tex. Code Crim. Proc. Ann. art 26.04(j)(2) (Vernon Supp. 2007).

            With this observation, I concur in reinstating this appeal but I do not join the “recognition” of the majority that a “substitution” of counsel has been effectively accomplished based on the record before us.^[2]

                                                                        TOM GRAY

                                                                        Chief Justice

Concurrence and dissent to order delivered and filed July 23, 2008

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