Guadalupe Mata v. State ( 2005 )

NO. 07-03-0429-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 5, 2005
______________________________
GUADALUPE MATA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. 14770-0301; HON. ED SELF, PRESIDING
_______________________________
ABATEMENT AND REMAND
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
Following a plea of not guilty, appellant Guadalupe Mata was convicted by a jury of
theft, and punishment was assessed by the trial court at six years imprisonment. The
appellate record has been filed. Pending before this Court is a motion to withdraw filed by
James M. Tirey, who was appointed to represent appellant in this appeal. Via his motion,
Tirey represents that he was elected Hale County Attorney and took office on January 1,
2005. He further asserts that his new duties will prohibit him from representing appellant
and requests that appellant be appointed new counsel.
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. 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 still desires to prosecute this appeal, and
2. whether appellant is indigent and desires and is entitled to appointed
counsel.
The trial court shall also cause a hearing to be transcribed. 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
shall include the appointment of new counsel if appellant desires counsel. If new counsel
is appointed, the name, address, telephone number, and state bar number of the newly
appointed attorney shall be included in the order appointing him.
The trial court shall execute findings of fact, conclusions of law, and such orders as
it may enter regarding the aforementioned issues and cause its findings, conclusions, and
orders to be included in a supplemental clerk’s record. A supplemental reporter’s record
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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 February 4, 2005. Finally, if new counsel is appointed, and should the newly
appointed counsel feel it necessary to amend the appellant’s brief already on file, he must
file the amended document on or before March 7, 2005. Should an amended appellant’s
brief be filed, the State may file an amended brief within 30 days of the date of the filing of
appellant’s amended brief.
It is so ordered.
Per Curiam
Do not publish.
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