IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 31, 2005
______________________________MICHAEL RAY DIAZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;
NO. 48,940-C; HONORABLE PATRICK PIRTLE, JUDGE _______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
ORDER ON ABATEMENT AND REMAND
Appellant Michael Ray Diaz has appealed his conviction and sentence following his felony conviction for indecency/sexual assault of a child and assessment of punishment that includes a sentence of life confinement. A copy of a notice of appeal was filed with this Court on May 2, 2005. The clerk's record and reporter's record have 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, in which counsel states he was not 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), 26.04(j)(2) (Vernon 2005 & Supp. 2004). 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 and 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 June 22, 2005. 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.
Per Curiam
Do not publish.
ocked="false" Priority="39" Name="toc 7"/>
NO. 07-10-00430-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 10, 2011
JOHN K. LOCKARD, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2008-419,440; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ORDER ON ABATEMENT AND REMAND
Following a plea of not guilty by reason of insanity, appellant, John K. Lockard, was convicted by a jury of murder, and sentenced to 97 years incarceration in the Texas Department of Criminal Justice, Institutional Division. The clerk=s record was filed on January 17, 2011.
Texas Rule of Appellate Procedure 25.2(a)(2) requires that a trial court shall enter a Certification of Defendant=s Right of Appeal each time it enters a judgment of guilt or other appealable order. Tex. R. App. P. 25.2(a)(2); Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex.Crim.App. 2006). An appeal must be dismissed if the certification has not been made part of the record under the applicable rules. Tex. R. App. P. 25.2(d).
Pursuant to an amendment to Rule 25.2(d), which became effective on September 1, 2007, the certification of defendant=s right of appeal must be signed by the defendant and a copy must be given to him. Tex. R. App. P. 25.2(d). Additionally, the certification shall include a notice that the defendant has been informed of his rights concerning appeal, as well as his right to file a pro se petition for discretionary review.[1]
This Courts review of the clerks record reveals that it does not contain a certification of defendants right of appeal. By correspondence dated January 18, 2011, this Court notified the trial court and the district clerk that the clerks record does not contain a certification of defendants right of appeal, and directed that a certification be filed by the trial court within 30 days of the date of our letter. To date, this Court has received no certification of defendants right of appeal.
Consequently, we now 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 secure a Certification of Defendant=s Right of Appeal in compliance with Rule 25.2(d). Once properly executed, the certification shall be included in a supplemental clerk=s record and filed with the Clerk of this Court on or before April 6, 2011.
This order constitutes notice to all parties of the defective certification pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 37.1. If a supplemental clerk=s record containing a proper certification is not filed in accordance with this order, this matter will be referred to the Court for dismissal. See Tex. R. App. P. 25.2(d).
It is so ordered.
Per Curiam
Do not publish.
[1] The proper form for Certification of Defendant=s Right of Appeal is contained in Appendix D of the 2008 Texas Rules of Appellate Procedure.