Delma Michael Herndon v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00061-CR
___________________________

DELMA MICHAEL HERNDON, Appellant

V.

THE STATE OF TEXAS

On Appeal from County Criminal Court No. 4
Denton County, Texas
Trial Court No. CR-2023-04492-D

Before Sudderth, C.J.; Kerr and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION

A jury found Appellant Delma Michael Herndon guilty of theft with a value of

$100 or more but less $750, a Class B misdemeanor, and assessed his punishment at

45 days’ confinement in jail and a $750 fine. See Tex. Penal Code Ann.

§ 31.03(e)(2)(A). The jury further recommended that the judge suspend Herndon’s

sentence and place him on community supervision. In accordance with the jury

verdict, the trial court signed the judgment on February 6, 2025, placing Herndon on

community supervision. Herndon appealed. In one issue, he contends that the trial

court deprived him of appellate counsel. While we recognize that the trial court tried

to remove Herndon’s appellate counsel, we hold that it failed and that at no point was

Herndon without appellate representation. We thus overrule Herndon’s sole issue.

I. BACKGROUND

Because Herndon’s issue focuses on whether he was deprived of appellate

counsel, our background discussion focuses on the appointment and the attempted

removal of his appellate attorney.

After Herndon’s February 6 conviction, his appointed trial counsel filed a

notice of appeal on February 27.1 The next day, on February 28, the trial court

1
By signing and filing the notice of appeal, Herndon’s trial counsel technically
became his appellate attorney of record. See Tex. R. App. P. 6.1(a); Reyes v. State,
557 S.W.3d 624, 640 (Tex. App.—El Paso 2017, pet. ref’d); Shead v. State, 697 S.W.2d
784, 785 n.2 (Tex. App.—Dallas 1985, no pet.) (per curiam).

2
appointed Stephen Wohr as Herndon’s appellate counsel at 11:31 a.m., and a few

hours later, at 2:41 p.m., in a separate order, it appointed J. Edward Niehaus.2

Thereafter, on March 3, Niehaus filed a notice of appeal and a request for the

clerk’s record and reporter’s record. And on March 4, Niehaus filed a docketing

statement in our court. Thus, despite any confusion, the record shows that Niehaus

actively pursued the appeal on Herndon’s behalf.

But on March 17, the trial court vacated its order appointing Niehaus. In its

entirety, the order provides: “Edward Niehaus, previously appointed as defendant’s

attorney, is hereby released of all responsibilities as defendant’s court-appointed

attorney.” On the same date, Niehaus filed in our court a motion to abate the appeal

and to withdraw as counsel.

We abated the appeal on March 18 for the trial court to conduct a hearing

regarding whether Herndon wanted to continue his appeal, whether he was indigent,

and whether he wanted to proceed pro se. Complying with our abatement order, the

trial court had two separate hearings, one on March 31 and the other on April 14, but

on both occasions, Herndon did not appear. The trial court was thus not able to

answer the questions that we posed in our abatement order. We automatically

reinstated Herndon’s appeal on receipt of the supplemental records of the March 31

2
In Herndon’s brief, he asserts that Wohr was unavailable, so the trial court
appointed Niehaus. The record does not reflect why the trial court appointed two
attorneys. There is no order removing Wohr as Herndon’s appellate counsel. In the
State’s brief, it notes simply that Wohr has not participated in the appeal. We agree
that other than Wohr’s appointment, he does not appear in the record.

3
and April 14 hearings, and on April 24, 2025, we denied Niehaus’s motion to

withdraw. Niehaus thereafter filed an appellant’s brief on Herndon’s behalf.

II. DISCUSSION

In one issue, Herndon argues that he was deprived of representation when the

trial court vacated his counsel’s appointment. Herndon argues that because no

evidence showed that his financial situation had changed, the trial court erred by

removing his appointed attorney. Herndon maintains that because the trial court had

previously determined that he was indigent when it appointed trial counsel to

represent him,3 he is presumed to remain indigent unless there is a material change in

his circumstances. See Tex. Code Crim. Proc. Ann. art. 26.04(p). Herndon contends

that he was deprived of counsel during critical stages of the appellate proceeding.

The State concedes that the trial court erred by removing Herndon’s appointed

appellate attorney because no evidence supports the implied finding that Herndon’s

financial circumstances had materially changed.4 See id. But the State denies that

Herndon was without counsel or harmed in any way.

3
The record does not contain an order appointing trial counsel, but it does
contain trial counsel’s request for payment, which reflects that trial counsel was
appointed. The record also contains Herndon’s claim of indigence and request for an
appointed trial attorney and his affidavit of indigence supporting his request for an
appointed trial attorney.

The State’s conceding error is not conclusive. Larson v. State, No. 02-19-00366-
4

CR, 2021 WL 2460733, at *1 n.1 (Tex. App.—Fort Worth June 17, 2021, no pet.)
(mem. op., not designated for publication).

4
A. THE BASIS ON WHICH THE
TRIAL COURT ATTEMPTED TO REMOVE COUNSEL

Both Herndon and the State assume that the basis of the trial court’s order was

the trial court’s reassessment of Herndon’s indigency. But whether reassessing

Herndon’s indigency was the basis of the March 17 order is not clear from its face.

The order does not give a reason for removing Niehaus. And, we do not have a

reporter’s record of the March 17 hearing. Indigency was not the only possible basis

for the order. The record also shows confusion over who represented Herndon on

appeal—trial counsel, who had filed the first notice of appeal; Wohr, whom the trial

court had appointed; or Niehaus, whom the trial court had also appointed. On its

face, the March 17 order could reflect the trial court’s attempt to clarify that issue.5

But for two reasons, based on our review of the record, we conclude that the

purpose of the March 17 hearing was to reconsider Herndon’s indigency status, not to

clarify which of the three possible attorneys were authorized to pursue Herndon’s

appeal.

First, if the March 17 order’s purpose was to clarify who represented Herndon,

it failed. The March 17 order removes Niehaus but says nothing about Herndon’s

5
If the basis of the trial court’s order was to clarify which attorney was
representing Herndon on appeal—that is, if the trial court never questioned
Herndon’s indigency but recognized belatedly that it had erroneously appointed two
appellate counsel to represent Herndon and wanted to vacate the second appointment
with the intention that the attorney it first appointed (Wohr) should pursue Herndon’s
appeal—Herndon’s argument that there is no evidence of a material change in his
financial circumstances would fail because his indigency played no part in the trial
court’s order.

5
trial counsel, who was potentially representing Herndon based on his signing the first

notice of appeal, or about Wohr, who was also potentially representing Herndon

based on the trial court’s first order appointing appellate counsel. By March 17, only

Niehaus was actively pursuing Herndon’s appeal, so at least among the attorneys,

there did not appear to be any confusion about who was representing Herndon on

appeal.

Second, although the order does not state the basis of the trial court’s ruling

and although we do not have a reporter’s record of the March 17 hearing, Herndon

asserts in his brief that the trial court had a non-evidentiary hearing on March 17.

Statements made by Niehaus at the March 31 abatement hearing support Herndon’s

assertion that there was a hearing: “We had a prior hearing, Judge. You vacated my

prior appointment.” And statements made by the trial court at the March 31

abatement hearing support Herndon’s assertion that although the hearing was not an

evidentiary one, the trial court based its order on Herndon’s indigence: “We have here

Mr. Niehaus, who was formally appointed the lawyer for Mr. Herndon’s appeal. But

then I removed him and set it for a hearing on indigency, was the plan.” Put another

way, the trial court removed Niehaus on March 17 and planned to support that ruling

with an evidentiary hearing at a later date.6

In fairness to the trial court, it might have wanted Herndon to prove up his
6

indigence before appointing appellate counsel. Herndon had not filed a
postconviction affidavit of indigence. We note that when the trial court appointed
Wohr and Niehaus on February 28, the form it used for the appointment of counsel

6
Accordingly, for the above two reasons, we conclude that the purpose of the

March 17 hearing was to revisit the question of Herndon’s indigency.

B. WHETHER THE MARCH 17 ORDER HAD EVIDENTIARY SUPPORT

We review a trial court’s indigency determination for an abuse of discretion.

Newman v. State, 937 S.W.2d 1, 3 (Tex. Crim. App. 1996). A trial court abuses its

discretion when no reasonable view of the record supports its ruling. State v. Lerma,

639 S.W.3d 63, 68 (Tex. Crim. App. 2021).

We hold that the trial court’s March 17 order is erroneous because it has no

evidentiary support. Article 26.04(p) provides that a defendant’s indigency status can

be changed if there is a material change in his circumstances. See Tex. Code Crim.

Proc. Ann. art. 26.04(p). Showing a material change in circumstances would require

evidentiary support.

Herndon, in his brief, asserts that the March 17 hearing was not evidentiary.

The State, in its brief, concedes that the trial court’s March 17 order has no

evidentiary support. And the trial court’s comment at the March 31 abatement

had two parts, one for the indigency finding and the other for the appointment of an
attorney. Regarding indigence, the form provided the trial court with three options:
indigence with reimbursement, indigence without reimbursement, and indigence by
incarceration. For both Wohr and Niehaus, the trial court did not select any of the
three. Thus, on the form itself, the trial court never expressly found that Herndon
was indigent. By appointing counsel, however, the trial court implicitly found that he
was. See Alvarez v. State, No. 13-23-00221-CR, 2024 WL 1665662, at *5 (Tex. App.—
Corpus Christi–Edinburg Apr. 18, 2024, no pet.) (mem. op., not designated for
publication) (“[O]nly an indigent defendant has the right to the appointment of
counsel.”).

7
hearing shows that it intended to rely on a later evidentiary hearing to support its

March 17 ruling removing Niehaus as Herndon’s counsel. A later evidentiary hearing

would be unnecessary if the trial court had conducted an evidentiary hearing on

March 17. We conclude that the March 17 hearing was non-evidentiary and, thus,

that the trial court’s March 17 order lacks any evidentiary support.

Because the trial court’s ruling did not have any evidentiary support showing

that Herndon’s financial circumstances had materially changed, we hold that the trial

court abused its discretion by removing counsel in its March 17 order. See Alvarez,

2024 WL 1665662, at *7 (“[W]e conclude that the trial court’s implicit determinations

that a material change in [the defendant’s] financial circumstances occurred after the

appointment of trial counsel . . . [was] not reasonably supported by the evidence.”);

Barkley v. State, No. 02-22-00081-CR, 2023 WL 2534465, at *8 (Tex. App.—Fort

Worth Mar. 16, 2023, pet. ref’d) (mem. op., not designated for publication) (requiring

some evidence to support the trial court’s ruling).7

C. NO HARM

Herndon maintains that he was harmed by the trial court’s March 17 order

because he was without counsel during a critical stage of his appellate proceedings.

7
In Herndon’s brief, he asserts that the trial court erred by assessing attorney’s
fees against him in violation of Article 26.05(g) of the Texas Code of Criminal
Procedure. From our review of the record, in the judgment, the trial court waived
attorney’s fees as authorized by Article 26.05(g). And nothing in the trial court’s
March 17 order contradicts that portion of the judgment.

8
We hold that because we denied Niehaus’s motion to withdraw, Herndon was not

without appellate counsel notwithstanding the trial court’s order. Herndon thus

cannot show harm based on any deprivation of counsel. And to the extent that the

trial court created confusion over Niehaus’s continued representation—essentially the

period from March 17 (the date the trial court purported to remove Niehaus as

Herndon’s appellate counsel) until April 24 (the date we denied Niehaus’s motion to

withdraw)—we hold that the confusion was both addressed and resolved without any

harm to Herndon.

The trial court appointed Niehaus on February 28, which was within the thirty

days to file a motion for new trial.8 See Tex. R. App. P. 21.4(a). And Niehaus

promptly assumed responsibility for the appeal by filing his own notice of appeal and

a request for the clerk’s record and the reporter’s record on March 3 and by filing the

docketing statement in our court on March 4.9 Although Niehaus did not file a

8
Technically, because the trial court had not signed an order authorizing
Herndon’s trial counsel to withdraw, Herndon’s trial counsel continued to represent
Herndon from February 6 through February 28. See Ward v. State, 740 S.W.2d 794,
798 (Tex. Crim. App. 1987) (“[T]rial counsel remains as the defendant’s counsel for all
purposes until he is expressly permitted to withdraw, even if the appointment was for
the trial only.”); see also Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (“An attorney
appointed under this article shall . . . 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 . . . .”).
9
February 28, 2025, was a Friday. March 3, 2025, was the following Monday.

9
motion for new trial, he had the time to file one if he thought that it was necessary to

do so.10

When the trial court signed the March 17 order removing Niehaus as

Herndon’s appellate counsel, nothing critical was occurring. Niehaus had not filed a

motion for new trial, so the March 17 order could not have interfered with any

hearing at that time. And, based on when the clerk’s and reporter’s records were filed,

Herndon’s appellate brief would not be due until June 26.11

And although the trial court had signed an order removing Niehaus as

Herndon’s appellate counsel, Niehaus was aware that we had not. Despite the trial

court’s order removing Niehaus, Niehaus proactively filed a motion to abate the

appeal and to withdraw as counsel in our court on March 17.12 Ultimately, on

April 24, we denied Niehaus’s motion to withdraw. From our perspective, Niehaus

never stopped being Herndon’s appellate attorney of record and, thus, Herndon was

not deprived of counsel during the relevant period from March 17 until April 24.

Thirty days from February 6 was Saturday, March 8, so Herndon had until
10

Monday, March 10, to file a motion for new trial. See Tex. R. App. P. §§ 4.1(a),
21.4(a). A motion for new trial is necessary in limited circumstances. See id. § 21.2,
21.3.

The clerk’s record was filed on April 1, but the reporter’s record was not filed
11

until May 27, making Herndon’s initial briefing due date June 26. See id. § 38.6(a).

In another case in which the trial court attempted to remove a parent’s
12

appointed appellate counsel, we did not learn about the trial court’s attempt until the
parent filed a pro se petition for writ of mandamus. See In re D.D., No. 02-25-00335-
CV, 2025 WL 2177180, at *1 (Tex. App.—Fort Worth July 31, 2025, orig. proceeding)
(mem. op.).

10
Whether the trial court would pay Niehaus for representing Herndon after the

March 17 order was a separate issue. For our purposes, paid or unpaid, Niehaus

remained Herndon’s attorney of record.

We hold that Niehaus represented Herndon throughout the appeal, that the

period from March 17 and April 24 was not a critical stage of the appellate process,

and that the trial court’s March 17 order did not harm Herndon. See generally Cooks v.

State, 240 S.W.3d 906, 911–12 (Tex. Crim. App. 2007) (“We . . . decide . . . that this

deprivation of counsel during the 30–day critical stage for filing a motion for new trial

was harmless beyond a reasonable doubt.”).

III. CONCLUSION

Because Herndon had Niehaus as his appellate counsel throughout the

appellate proceedings, the trial court’s March 17 order did not harm him.

Accordingly, we overrule his sole issue and affirm the trial court’s judgment.13

13
Given the confusion occasioned by the trial court’s order removing appellate
counsel, we note but do not address three other issues that such an order raises.

First, once a defendant is found indigent, Article 26.04(p) specifies how and by
whom the indigency issue may be re-litigated: “If there is a material change in
financial circumstances after a determination of indigency or nonindigency is made,
the defendant, the defendant’s counsel, or the attorney representing the state may
move for reconsideration of the determination.” Tex. Code Crim. Proc. Ann. art.
26.04(p). The trial court is not among those listed who have the authority to initiate a
reconsideration of a defendant’s indigency. Compare id. (limiting who may ask to have
a defendant’s indigency reconsidered), with Tex. Fam. Code Ann. § 107.013(e)
(limiting who may ask to have a parent’s indigency reconsidered). See D.D., 2025 WL
2177180, at *3 (“We hold that the trial court abused its discretion because Section

11
/s/ Brian Walker

Brian Walker
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: October 9, 2025

107.013(e) does not authorize either the trial court or [the m]aternal [g]randmother to
move to reconsider [the f]ather’s indigency.”).

Second, we question whether—without an abatement and remand by us
authorizing the trial court to relitigate Herndon’s indigency—the trial court’s
March 17 order interfered with our jurisdiction. See generally Tex. R. App. P. 29.5
(stating in the context of an interlocutory appeal that the trial court “must not make
an order that . . . interferes with or impairs the jurisdiction of the appellate court or
effectiveness of any relief sought or that may be granted on appeal”); D.D., 2025 WL
2177180, at *1 n.3. By March 17, Niehaus was Herndon’s appellate attorney of
record. Removing Niehaus would necessarily impact the appellate process. We could
not allow Herndon to proceed pro se without Faretta warnings. See Faretta v. California,
422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975); Hubbard v. State, 739 S.W.2d 341, 345
(Tex. Crim. App.1987).

And third, absent an abatement and remand by us, we question at what point
the trial court’s continuing jurisdiction to relitigate indigency, to appoint counsel, and
to remove counsel ends. See Ramirez v. State, 104 S.W.3d 549, 550 (Tex. Crim. App.
2003) (“[T]he trial court’s general jurisdiction had expired upon the filing of the notice
of appeal, and the trial court had authority to proceed only for limited purposes set
out by law—in this instance, to determine whether the appellant was entitled to
appointed counsel.” (footnotes omitted)). We, however, are not dealing with the
appointment of counsel but with a later attempted removal of appointed counsel. See
Whitehead v. State, 130 S.W.3d 866, 874 n.34 (Tex. Crim. App. 2004) (questioning but
not resolving when the trial court loses jurisdiction).

12