Opinion
No. 05-17-01257-CR
11-03-2017
EDDIE LEE SMITH, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F17-75371-V
ORDER
On September 7, 2017, the trial court found Eddie Lee Smith, Jr. guilty of arson, made an affirmative finding of use of a deadly weapon, and assessed punishment at nine years in prison. Appellant's pro se notice of appeal and motion for extension of time to file a notice of appeal were received by this Court on October 16, 2017. Both the motion for extension of time and the notice of appeal were dated October 5, 2017 and postmarked October 12, 2017.
Absent a motion for new trial, a notice of appeal in a criminal case must be filed in the trial court within 30 days after the day sentence is imposed in open court. TEX. R. APP. P. 26.2(a)(1). We may extend the time for filing a notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the defendant files his notice of appeal in the trial court and files in the court of appeals a motion to extend time. TEX. R. APP. P. 26.3.
Here, appellant's notice of appeal was due October 7, 2017 and any motion to extend time to file the notice of appeal was due October 22, 2017. Because appellant filed his notice of appeal in the trial court and a timely motion to extend time to file the same with this Court within the fifteen-day deadline imposed by rule 26.3, we conclude his notice of appeal is timely filed.
We ORDER the trial court to conduct a hearing to determine whether appellant is entitled to court-appointed counsel in this appeal. If the trial court finds that appellant is entitled to court-appointed counsel, we ORDER the trial court to appoint an attorney to represent appellant in the appeal. If the trial court finds that appellant is not entitled to court-appointed counsel, the trial court shall determine whether appellant will retain counsel to represent him in the appeal and, if so, the name, State Bar number, and contact information for retained counsel.
We ORDER the trial court to transmit a record of the hearing, including findings of fact, any orders, and any supporting documentation, to this Court within THIRTY DAYS of the date of this order. We further ORDER that the supplemental clerk's record contain the trial court's completed certification of appellant's right to appeal in this case. See TEX. R. APP. P. 25.2(a), (d).
We ABATE the appeal to allow the trial court to comply with the order. The appeal will be reinstated thirty days from the date of this order or when the findings are received, whichever is earlier.
/s/ ADA BROWN
JUSTICE