John Zavala v. State ( 2005 )

NO. 07-05-0250-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 2, 2005 ______________________________

JOHN ZAVALA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 396^TH DISTRICT COURT OF TARRANT COUNTY;

NO. 0943395D; HON. GEORGE GALLAGHER, PRESIDING ________________________________

Memorandum Opinion _______________________________

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

Appellant, John Zavala, appealed his convictions for arson and burglary of a habitation. His appointed counsel has filed a motion to withdraw, together with an Anders ⁽¹⁾ brief. He certified that, after diligently searching the record, he found the appeal meritless. Appellate counsel served his client with a copy of his brief and motion. So too did he tell appellant of his conclusions and of appellant's right to file a pro se response or brief and review the record. This court also informed appellant of the same matters and directed him to file any response or brief he cared to by November 30, 2005. To date, appellant has neither filed a response, brief, or request for an extension.

Per Anders, appellate counsel explained, in his brief, why the appeal was meritless. We conducted our own review of the record to uncover potential error, reversible or otherwise, pursuant to Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Like that of appellate counsel, our review uncovered none.

Accordingly, the motion to withdraw is granted, and the judgment is affirmed.

Brian Quinn

Chief Justice

Do not publish.

1. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

The trial court clerk's record was due to be filed no later than May 6, 2008. The clerk of this court is in receipt of a request for extension from the trial court clerk dated May 7, 2008, which advises appellant has not paid or made arrangements for payment of the record. Additionally, the trial court clerk advised us that no attorney had been appointed on the appeal. Accordingly, this appeal is abated and the cause is remanded to the trial court. Tex. R. App. P. 37.3(a)(2).

          Upon remand, the trial court shall immediately cause notice of a hearing to be given, if necessary, and, thereafter conduct a hearing to determine the following:

          1.       whether appellant desires to prosecute the appeal, and if so,

          2.       (a)      whether appellant's trial counsel of record continues to represent him and what steps need to be taken to ensure a diligent pursuit of the appeal; or

                     (b) whether trial counsel for appellant has abandoned the appeal;

          3.       whether appellant has been deprived of a clerk's record because of ineffective assistance of counsel or for any other reason;

          4.       if appellant desires to prosecute this appeal, whether appellant is indigent and entitled to appointed counsel;

          If the trial court determines 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, including the appointment of new counsel if necessary. The trial court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or the newly-retained attorney. Finally, 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 the supplemental reporter's record with the Clerk of this Court by June 16, 2008.

          It is so ordered.

Per Curiam

Do not publish.