Nicolas Contreras v. State

NO. 07-07-0338-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 28, 2007 ______________________________

NICOLAS CONTRERAS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 121^ST DISTRICT COURT OF TERRY COUNTY;

NO. 5580; HONORABLE KELLY G. MOORE, JUDGE _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ON MOTION TO DISMISS

Pending before this Court is appellant's motion to dismiss his appeal. Appellant and his attorney both have signed the document stating that appellant withdraws his appeal. Tex. R. App. P. 42.2(a). No decision of this Court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith.

Mackey K. Hancock

Justice

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on of record has been received and no arrangement to pay for the records has been made. No appearance has been made by any counsel for appellant on appeal.

In Texas, every person convicted of a crime has a statutory right to appeal. See Tex. Crim. Proc. Code Ann. § 44.02 (Vernon 1979); Nguyen v. State, 11 S.W.3d 376, 378-79 (Tex.App.--Houston [14^th Dist.] 2000, no pet.); Johnson v. State, 885 S.W.2d 641, 644 (Tex.App.--Waco 1994, pet. ref'd). The Sixth and Fourteenth Amendments of the United States Constitution guarantee to a criminal defendant the right to counsel on a first appeal. See Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). An attorney must be appointed by the state to represent an indigent defendant on the first appeal. See McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 435, 108 S. Ct. 1895, 1900, 100 L. Ed. 2d 440 (1988). In Texas, the trial court has been designated to appoint the appellate attorney for an eligible indigent defendant. See Tex. Crim. Proc. Code Ann. §§ 1.051(d)(1), 26.04(a).

These appeals are abated and the causes are remanded to the trial court. Upon remand, the judge of the trial court is directed to cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute any or all of the appeals; (2) if appellant desires to prosecute any or all of the appeals, then whether appellant is indigent; (3) if appellant is indigent and desires to prosecute any or all of the appeals, whether counsel should be appointed for appeal; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeals if appellant does not desire to prosecute any of the appeals, or, if appellant desires to prosecute any of the appeals, to assure that the appeals will be diligently pursued. If the trial court determines that counsel should be appointed for any or all of the appeals, the trial court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the appointed attorney.

The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a supplemental clerk's record; (3) cause the hearing proceedings to be transcribed and included in a reporter's record of the hearing; and (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's record or the reporter's record of the hearing. In the absence of a request for extension of time from the trial court, the supplemental clerk's record, reporter's record of the hearing, and any additional proceeding records, including any orders, findings conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than August 29, 2003.

Per Curiam

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