Cruz Tijerina v. State ( 2005 )

NO. 07-05-0369-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
DECEMBER 22, 2005
______________________________
CRUZ TIJERINA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2004-406077; HONORABLE BRADLEY UNDERWOOD, JUDGE
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
ORDER ON ABATEMENT AND REMAND
Appellant Cruz Tijerina has appealed his conviction and sentence following his
conviction of possession of a controlled substance and assessment of punishment that
includes 5 years confinement. The clerk’s record was filed on November 29, 2005 and the
reporter’s record has not been filed. Attorney William E. McNamara III has filed a copy of
the trial court’s Order On Motion to Withdraw as Counsel granting Mr. McNamara’s motion
to withdraw as appointed counsel for appellant.
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. art. 1.051(d) (Vernon Supp. 2004-05). See also Enriquez v. State, 999 S.W.2d 906,
907 (Tex.App.–Waco 1999, no pet.). Further, the trial court retains authority to appoint or
substitute counsel even after the appellate record has been filed. Enriquez, 999 S.W.2d
at 908. See Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (Vernon Supp. 2004-05).
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 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;
(2) if appellant desires to prosecute this appeal, then whether appellant
is entitled to appointed counsel;
(3) what orders, if any, should be entered to assure the filing of
appropriate notices and documentation to dismiss appellant’s appeal
if appellant does not desire to prosecute this appeal, or, if appellant
desires to prosecute this appeal, to assure that the appeal will be
diligently pursued.
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. 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
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conclusions to be included in a supplemental clerk's record. A supplemental reporter's
record of the hearing shall also be included in the appellate record. The trial court shall file
the supplemental clerk's record and the supplemental reporter's record with the Clerk of
this Court by January 23, 2006. 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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