In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-15-00246-CR
No. 07-15-00286-CR
________________________
RICKY DAN ALLEE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court
Randall County, Texas
Trial Court No. 17,197-A; Honorable Dan Schaap, Presiding
October 16, 2015
ORDER ON COUNSEL’S MOTION TO WITHDRAW
AND ORDER OF ABATEMENT AND REMAND ON INDIGENCY
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Ricky Dan Allee, was charged with possession of a controlled
substance in an amount of four grams or more but less than 200 in a drug-free zone1
1
TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010). The offense is a second degree
felony with punishment increased by five years when committed in a drug-free zone. Id. at § 481.134(c).
and possession of marihuana in an amount of five pounds or less but more than four
ounces in a drug free-zone.2 In exchange for pleas of guilty, the trial court placed
Appellant on deferred adjudication community supervision. The State subsequently
moved to adjudicate Appellant guilty of both offenses for violating the conditions of
community supervision. The trial court granted the State’s motion and entered a finding
of guilt as to each offense. Punishment was assessed at eight years confinement and a
$1,500 fine as to the possession of controlled substance case and eight years
confinement as to the possession of marihuana case.
Appellant retained counsel to pursue these appeals. Pending before this court is
counsel’s Motion to Withdraw in which he represents that Appellant has failed to pay his
agreed-upon fee and did not make a deposit for payment of the reporter’s record.3
Pursuant to Rule 6.5 of the Texas Rules of Appellate Procedure, counsel’s motion to
withdraw is granted and he is hereby relieved as Appellant’s appellate attorney of
record.
By the motion to withdraw, counsel further requests that new counsel be
appointed to represent Appellant in this appeal “because he is indigent and cannot
afford to employ counsel.” Typically, such a request comes from an appellant—not his
attorney. Furthermore, the trial court has the authority to appoint counsel for eligible
indigent defendants for appeal. TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1) (West
2
TEX. HEALTH AND SAFETY CODE ANN. § 481.121(b)(3) (West 2010). The offense is a state jail
felony with punishment increased to that of a third degree felony when committed in a drug-free zone. Id.
at § 481.134(d).
3
As a result of non-payment of the reporter’s record, by letter dated September 29, 2015, the
reporter’s record was deemed filed and the deadline for filing Appellant’s brief was set for October 29,
2015. By virtue of this order, that deadline is suspended.
2
Supp. 2014). Some of the factors the trial court may consider in determining indigency
include a defendant’s income, source of income, assets, property owned, outstanding
obligations, necessary expenses, the number and ages of dependents, and spousal
income that may be available. Id. at art. 26.04(m). 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
immediately determine the following:
1. whether Appellant still desires to prosecute this appeal; and
2. whether Appellant is indigent and entitled to appointed counsel to pursue
this appeal.
Should it be determined that Appellant does want to continue the appeal and the trial
court determines he is entitled to appointed counsel, the name, address, telephone
number, email address, and state bar number of appointed counsel shall be provided to
the clerk of this court. The trial court shall execute findings of fact and conclusions of
law, and shall cause its findings, conclusions, and any necessary orders to be included
in a supplemental clerk's record to be filed with the clerk of this court by November 20,
2015. If new counsel is appointed to represent Appellant, his brief shall be due thirty
days following the date of appointment.
Should the trial court determine that Appellant is not indigent, Appellant may
proceed pro se in this appeal or retain new appellate counsel to prosecute this appeal.
3
Appellant’s brief shall be due thirty days from the date the supplemental clerk’s record is
filed with the clerk of this court.
It is so ordered.
Per Curiam
Do not publish.
4