Michael Ray Diaz v. State ( 2005 )

NO. 07-05-0168-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 31, 2005
______________________________
MICHAEL RAY DIAZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;
NO. 48,940-C; HONORABLE PATRICK PIRTLE, JUDGE
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
ORDER ON ABATEMENT AND REMAND
Appellant Michael Ray Diaz has appealed his conviction and sentence following his
felony conviction for indecency/sexual assault of a child and assessment of punishment
that includes a sentence of life confinement. A copy of a notice of appeal was filed with this
Court on May 2, 2005. The clerk’s record and reporter’s record have not been filed.
Pending before this Court is a motion to withdraw filed by appointed counsel W. Brooks
Barfield, Jr., who represented appellant at trial, in which counsel states he was not
appointed to represent appellant on appeal.
The trial court has the responsibility for appointing counsel to represent indigent
defendants, as well as the authority to relieve or replace counsel. Tex. Code Crim. Proc.
Ann. arts. 1.051(d), 26.04(j)(2) (Vernon 2005 & Supp. 2004). See also Enriquez v. State,
999 S.W.2d 906, 907 (Tex.App.–Waco 1999, no pet.). Accordingly, we now abate this
appeal and remand the cause to the trial court for further proceedings. Tex. R. App. P.
43.6.
Upon remand the trial court shall immediately conduct such hearings as may be
necessary to determine the following, causing proper notice of any such hearing to be
given:
1. whether counsel's motion to withdraw should be granted; and if so,
2. whether appellant still desires to prosecute this appeal and is indigent and entitled
to appointed counsel.
Should it be determined that appellant desires to continue the appeal, 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 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 reporter's
record of any hearing shall also be included in the appellate record. The trial court shall
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file the supplemental clerk's record and the supplemental reporter's record with the Clerk
of this Court by June 22, 2005. Finally, if new counsel is appointed, appellant's brief will
be due within 30 days after the deadline for filing of the supplemental clerk's record and the
supplemental reporter's record and the State's brief will be due within 30 days thereafter.
Tex. R. App. P. 38.6(a) & (b).
It is so ordered.
Per Curiam
Do not publish.
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