Xan Ross Ormon v. State ( 2009 )

NO. 07-09-0203-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 19, 2009
______________________________
XAN ROSS ORMON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 47,237; HONORABLE DAVID L. GLEASON, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ON ABATEMENT AND REMAND
Appellant was sentenced in open court on May 26, 2009. His retained trial counsel
filed notice of appeal after the trial court issued a certification of his right to appeal, on June
16. Now pending before the Court is counsel’s motion to withdraw. In the motion, counsel
represents he has not been employed to represent appellant in the appeal of his
conviction, appellant has not communicated with counsel regarding the appeal, and
appellant has not provided funds for the appeal. Finding counsel’s motion substantially
complies with Rule of Appellate Procedure 6.5, we grant the motion to withdraw.
Neither a clerk’s nor a reporter’s record has been filed. Also pending before the
Court is the court reporter’s request for an extension of time to file the reporter’s record,
until September 27, 2009. The request is granted.
Finally, we abate the appeal, and remand the cause to the 181stJudicial District
Court of Potter County for further proceedings. On remand, the trial court shall utilize
whatever means it finds necessary to determine:
1) whether appellant wishes to pursue the appeal;
2) whether appellant is indigent;
3) whether appellant has retained counsel to prosecute the appeal; and
4) if appellant is indigent, whether he is entitled to appointed counsel on
appeal and a free appellate record.
In determining indigency, the court shall consider the factors set forth in article
26.04(m) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art.
26.04(m) (Vernon 2009); Gonzales v. State, 8 S.W.3d 679, 680 (Tex.App.–Amarillo 1999,
no pet.). So too may it consider any other evidence relevant to the issue of whether
appellant “is not financially able to employ counsel.” See Tex. Code Crim. Proc. Ann. art.
1.051(b) (Vernon 2005) (defining an indigent as one “who is not financially able to employ
counsel”); Conrad v. State, 537 S.W.2d 755, 757 (Tex.Crim.App.1976) (noting the absence
of a standard for determinations of indigency). However, that appellant previously retained
counsel to represent him at trial is not alone determinative, Conrad, 537 S.W.2d at 757,
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given that indigency must be assessed at the time the issue arises. Gonzales, 8 S.W.3d at
680.
We further direct the district court to issue findings of fact and conclusions of law
addressing the subjects numerically itemized above. Should the district court find that
appellant desires to pursue his appeal, is without legal representation, and is indigent, then
we further direct the court to appoint counsel to assist in the prosecution of the appeal and
to order that a transcript of the trial court proceedings be provided to appellant free of
charge. The name, address, phone number, fax number, and state bar number of the
counsel who will represent appellant on appeal must also be included in the court's
appointment order. Furthermore, the district court shall also cause to be developed 1) a
supplemental clerk's record containing the findings of fact and conclusions of law and any
orders of the district court issued on remand and, 2) a reporter's record transcribing the
evidence and argument presented at any hearing held on remand. Additionally, the district
court shall cause the supplemental clerk's record to be filed with the clerk of this court on
or before September 25, 2009.
It is so ordered.
Per Curiam
Do not publish.
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