Benny Joe Alvarez v. State ( 2004 )

NO. 07-04-0235-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
NOVEMBER 23, 2004
______________________________
BENNY JOE ALVAREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 45,644-A; HONORABLE HAL MINER, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
ABATEMENT AND REMAND
Following his plea of not guilty, appellant Benny Joe Alvarez was convicted by a jury
of aggravated assault with a deadly weapon, enhanced, and punishment was assessed at
27 years confinement. Both the clerk’s record and reporter’s record have been filed.
Attorney Gerald D. McDougal filed an Anders brief on July 16, 2004, and appellant filed a
pro se response on November 18, 2004.1 The State did not favor us with a brief. Upon
suggestion of death of appellant’s attorney, we now abate this appeal and remand the
cause to the trial court.
Upon remand, the trial court shall immediately cause notice of a hearing to be given
and, thereafter, conduct a hearing to determine the following:
1. whether appellant desires to prosecute this appeal; and
2. whether appellant is indigent and entitled to new appointed counsel.
The trial court shall cause a hearing to be transcribed. Should it be determined that
appellant does want to continue the appeal and is indigent, then the trial court shall also
take such measures as may be necessary to assure appellant effective assistance of
counsel, which measures may include the appointment of new counsel. If new counsel is
appointed, the name, address, telephone number, and state bar number of said counsel
shall be included in the order appointing new counsel. The trial court shall execute findings
of fact, conclusions of law, and such orders as the court may enter regarding the
aforementioned issues, and cause its findings and conclusions to be included in a
supplemental clerk's record. A supplemental record of the hearing shall also be included
in the appellate record. Finally, the trial court shall file the supplemental clerk's record and
supplemental reporter's record with the Clerk of this Court by Friday, January 14, 2005.
1
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2
Should new counsel be appointed, the Clerk of the Court is instructed to accept and
file any brief or supplemental brief newly appointed counsel desires to file. Absent a motion
for extension of time, new counsel’s brief(s) shall be due within 30 days after filing of the
supplemental clerk’s and reporter’s records. The State’s brief will be due within 60 days
following filing of the supplemental clerk’s and reporter’s records or within 30 days following
the filing of new counsel’s brief(s), whichever is later. Tex. R. App. P. 38.6(a) & (b).
It is so ordered.
Per Curiam
Do not publish.
3