Cirilo Diaz, Jr. v. State ( 2011 )

NO. 07-11-0297-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
OCTOBER 13, 2011
______________________________
CIRILO DIAZ, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B17995-0904; HONORABLE ED SELF, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
In 2009, Appellant Cirilo Diaz, Jr., was convicted of burglary of a habitation1 and
sentenced to five years confinement and assessed a $750 fine. Punishment was
suspended in favor of five years community supervision. At a hearing on the State's
1
Tex. Penal Code Ann. § 30.02 (West 2011).
motion to revoke, Appellant entered a plea of true to the State's allegations and the trial
court found he had violated the terms and conditions of community supervision and
revoked his community supervision. The trial court assessed the original sentence.
Appellant perfected this appeal.
By letter dated September 6, 2011, this Court granted the Hale County District
Clerk an extension of time in which to file the clerk's record on the ground that Appellant
had neither paid for nor made arrangements to pay for the record. By that same letter,
counsel was directed to certify whether he had complied with Rule 35.3(a)(2) regarding
the clerk's record. In response, counsel filed two motions: (1) Motion to Withdraw and
(2) Motion to Extend Deadline to File Clerk's Record.
By the Motion to Withdraw, which does not comply with Rule 6.5 of the Texas
Rules of Appellate Procedure, counsel represents he was retained by Appellant for the
purpose of filing a motion for new trial.2 Appellant's family indicated it would hire an
appellate attorney to pursue an appeal and later advised counsel they were financially
unable to do so. After the motion for new trial was overruled, counsel filed the notice of
appeal to protect Appellant and awaited instructions from Appellant. Appellant did not
retain new counsel on appeal and did not pay for the clerk's record.3 According to
2
Without a clerk's record, we cannot speculate whether Appellant proceeded without payment of costs
during trial.
3
The expense for the reporter's record, which was filed on September 8, 2011, was incurred by counsel.
2
counsel, Appellant contacted him and expressed a desire not to pursue this appeal but
did not respond to further contact from counsel.
By the motion to extend the deadline in which to file the clerk's record,4 counsel
recites basically the same facts as in his motion to withdraw. In the interest of judicial
economy, we abate this appeal and remand the cause to the trial court for further
proceedings.
Upon remand, the trial court shall utilize whatever means necessary to determine
whether counsel's motion to withdraw is well taken. Should the motion to withdraw be
granted, then the trial court shall determine the following:
1. whether Appellant desires to prosecute this appeal;
2. whether Appellant is indigent and entitled to appointed counsel; and
3. whether Appellant is entitled to a free appellate record.
Should it be determined that Appellant does want to continue the appeal and the trial
court determines he is entitled to appointed counsel, the name, address, telephone
number, and state bar number of appointed counsel shall be provided to the Clerk of
this Court. The trial court shall execute findings of fact and conclusions of law, and shall
cause its findings, conclusions, and any necessary orders to be included in the clerk's
record to be filed with the Clerk of this Court on or before November 14, 2011. The
motion for extension of time in which to file the clerk's record filed by counsel is
4
A motion for extension of time in which to file the appellate record is customarily filed by the trial court
clerk or court reporter, not by counsel.
3
rendered moot. Appellate deadlines are suspended and, should Appellant wish to
pursue this appeal and the trial court finds he is indigent and entitled to appointment of
counsel, the clerk's record will be due thirty days after appointment of counsel.
It is so ordered.
Per Curiam
Do not publish.
4