NO. 07-04-0080-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 8, 2004
______________________________
CHARLES GIBBS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW NO. TWO OF LUBBOCK COUNTY;
NO. 2003-484936; HONORABLE DRUE FARMER, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
ORDER OF ABATEMENT AND REMAND
Appellant Charles Gibbs has given notice of appeal in cause number 2003-484,936
in the County Court at Law No. 2 of Lubbock County, Texas (the trial court). The appellate
court clerk received and filed the trial court clerk’s record on April 2, 2004. The trial court
clerk’s record reflects that appellant filed an Affidavit of Inability to Employ Counsel on
Appeal and Inability to Pay or Give Security for Clerk’s Record and Reporter’s Record.
There is not an order from the trial court determining indigency and appointment of counsel.
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 [14th Dist.] 2000, no pet. h); 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).
Accordingly, this appeal is abated and the cause is remanded to the trial court. TEX .
R. APP . P. 43.6. 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
this appeal; (2) if appellant desires to prosecute this appeal, then whether appellant is
indigent; (3) if it is determined that appellant is indigent, whether counsel should be
appointed to represent appellant. If counsel is appointed to represent appellant, then the
trial court is directed to cause the name, address, and State Bar of Texas identification
number of the new attorney to be furnished to the clerk of this court; and, (4) what orders,
if any, should be entered to assure the filing of appropriate notices and documentation to
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dismiss appellant’s appeal if appellant does not desire to prosecute this appeal, or, if
appellant desires to prosecute this appeal, to assure that the appeal will be diligently
pursued.
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; 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 6, 2004.
Per Curiam
Do not publish.
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