In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00119-CR
MITCHELL DAMOND MARTIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 7th District Court
Smith County, Texas
Trial Court No. 007-0047-18
Before Morriss, C.J., Moseley and Burgess, JJ.
ORDER
Mitchell Damond Martin was convicted by a Smith County jury of assault on a public
servant and was sentenced to ten years’ imprisonment. The clerk’s record indicates that Martin
retained Francis Key to represent him at trial. The clerk’s record further indicates that on June 8,
2018, Key filed a notice of appeal on Martin’s behalf. There is no indication in the clerk’s record
that counsel was appointed to represent Key on appeal. Although the reporter’s record was due to
be filed on July 16, that record has yet to be filed as required by the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 34, 35.
By letter dated August 28, 2018, we advised Key that according to the court reporter,
Martin has not filed an affidavit of indigence and has not been found to be indigent. We further
advised Key that the court reporter has not received a request to prepare the record for appeal and
that Martin has neither paid nor made satisfactory arrangements to pay the reporter’s fee for
preparation of the reporter’s record. We, therefore, advised Martin that he should either pay the
fee for preparation of the reporter’s record or make arrangements to do so by September 7, 2018.
We have been advised by the court reporter that Martin has neither paid for the record nor
made arrangements to do so. Further, because Key did not respond to our letter and subsequent
attempts to contact him, we are concerned that Martin may be indigent. Finally, our file includes
a letter from Martin in which he indicates that he believes that Key was ineffective at trial and that
Key was never paid his full fee.
Based on these circumstances, which reflect that Martin might now be indigent, we abate
this matter to the trial court so that it may conduct whatever hearings are necessary to make the
2
following determinations: (1) whether Martin still desires to prosecute his appeal and (2) whether
Martin is indigent and entitled to the appointment of counsel to represent him in this appeal. If
Martin is determined to be indigent, then the trial court shall appoint counsel to represent Martin
in this appeal.
The trial court may enter any orders necessary to implement these directives. Any hearing
shall be conducted by the trial court within ten days of the date of this order. Appropriate orders
and findings shall be sent to this Court in the form of a supplemental clerk’s record within ten days
of the date of the hearing contemplated by this order. The reporter’s record of any hearing shall
be filed with this Court within ten days of the date of the hearing contemplated by this order.
All appellate timetables are stayed and will resume on our receipt of the supplemental
appellate record.
IT IS SO ORDERED.
BY THE COURT
Date: September 18, 2018
3