Thomas Craig Lyons v. State ( 2004 )

NO. 07-03-0358-CR

07-03-0359-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

DECEMBER 9, 2004

______________________________



THOMAS CRAIG LYONS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 258TH DISTRICT COURT OF POLK COUNTY;

NO. 16,760, 16,761; HONORABLE JERRY SANDEL, JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

ON ORDER OF ABATEMENT AND REMAND

Appellant Thomas Craig Lyons has given notice of appeal from a conviction and sentence in Cause Nos. 16760 and 16761 in the 258^th District Court of Polk County, Texas (the trial court), for two counts of aggravated sexual assault of a child. The appellate court clerk has received and filed the trial court clerk's records and the trial court reporter's record. Appellant's retained counsel filed a motion to withdraw from this case on November 24, 2003 stating that he has diligently and throughly reviewed the case, but has been unable to discover any non-frivolous appellate arguments on behalf of appellant. In this motion, counsel identified current deadlines and settings relevant to the case, stated appellant's name and last known address, stated that a copy of the motion was delivered to appellant and that appellant was notified in writing that he had a right to object to the motion. See Tex. R. App. P. 6.5. Appellant has not filed a response to this motion.

This appeal is abated and the cause is remanded to the trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure. Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine the following: (1) whether to grant appellate counsel's motion to withdraw; (2) whether appellant desires to prosecute the appeal; and (3) if so, whether appellant is indigent and entitled to appointed counsel. If the trial court determines that appellant is entitled to appointed counsel, the court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the appointed attorney.

The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law, recommendations and such orders as the court may enter regarding the aforementioned issues, and cause them to be included in a supplemental clerk's record; (3) cause the hearing proceedings to be transcribed and included in a supplemental reporter's record; and (4) cause the records of the proceedings to be sent to this court. See Tex. R. App. P. 38.8(b)(3). In the absence of a request for extension of time from the trial court, the supplemental clerk's record, supplemental reporter's record, and any additional proceeding records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than January 14, 2005.

Per Curiam

Do not publish.