Opinion
No. 07-05-0360-CR
January 17, 2006. DO NOT PUBLISH.
Appeal from the 320th District Court of Potter County, No. 50,278-D, Honorable Don R. Emerson, Judge.
Panel A: Before REAVIS and CAMPBELL and HANCOCK, JJ.
ORDER ON ABATEMENT AND REMAND
Appellant Kelly Mayfield has appealed his conviction and sentence following his conviction for unauthorized use of a motor vehicle and assessment of punishment of five years in the Texas Department of Criminal Justice, Institutional Division. A copy of a notice of appeal was filed with this Court on October 13, 2005. The reporter's record was filed on January 11, 2005 and the clerk's record has not been filed. Pending before this Court is a motion to withdraw filed by appointed counsel W. Brooks Barfield, Jr., who represented appellant at trial and has not been appointed to represent appellant on appeal. 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. arts. 1.051(d) (Vernon 2005), 26.04(j)(2) (Vernon Supp. 2005). See also Enriquez v. State, 999 S.W.2d 906, 907 (Tex.App.-Waco 1999, no pet.). 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 conduct such hearings as may be necessary to determine the following, causing proper notice of any such hearing to be given:
1. whether counsel's motion to withdraw should be granted; and if so,
• whether appellant still desires to prosecute this appeal, is indigent and entitled to appointed counsel.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 may include the appointment of new 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 conclusions to be included in a supplemental clerk's record. A supplemental reporter's record of any 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 17, 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.