This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P. Applicant was convicted by a jury of aggravated rape and sentenced to 35 years imprisonment in the Texas Department of Corrections. He was represented by court appointed counsel on appeal. On April 1, 1982, the Corpus Christi Court of Appeals reversed applicant's conviction in an unpublished opinion, citing Scott v.State, 599 S.W.2d 618 (Tex.Cr.App. 1980) and Cumbiev. State, 578 S.W.2d 732 (Tex.Cr.App. 1979). The State filed a petition for discretionary review in this Court, which was granted to consider whether the Court of Appeals had properly reversed the case. In an unpublished opinion, we remanded the case to the Court of Appeals for further proceedings consistent with our opinion in Almanza v.State, 686 S.W.2d 157 (Tex.Cr.App. 1985), which was rendered after the Court of Appeals reversed applicant's conviction. Lopez v. State, No. 368-82, delivered April 10, 1985. On remand, the Corpus Christi Court of Appeals found that applicant had not suffered reversible harm from errors committed in the trial court; therefore, the conviction was affirmed. Lopez v. State, 697 S.W.2d 761 (Tex.App.-Corpus Christi 1985).
In his application for writ of habeas corpus, applicant contends that he was denied effective assistance of counsel after his case was remanded to the court of appeals because his attorney "apparently withdrew from the case upon receiving notice of reversal," citing Ayala v. State, 633 S.W.2d 526 (Tex.Cr.App. 1982). Relying on Polk v.State, 676 S.W.2d 408 (Tex.Cr.App. 1984), applicant argues that he was entitled to assistance of counsel once this Court remanded the case to the Court of Appeals. *Page 30 Applicant requests that he be granted a new trial or an out-of-time appeal.
In Ayala, supra at 527, this Court stated the following:
"Specifically, [the State] . . . may not deny indigent defendants the services of counsel on the first level of appeal from a criminal conviction, which it grants as a matter of right. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). `[W]here the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.' Id. at 357, 83 S.Ct. 816 (emphasis in original)."
Thus, an indigent defendant has the right to appointed counsel when he appeals the case. In non-death penalty cases, this right applies to appeal to the applicable court of appeals.
With regard to the instant case, applicant received the services of appointed counsel when the case was initially appealed to the Corpus Christi Court of Appeals. After we reviewed the case and sent it back to that court for further consideration of its initial decision, applicant stood in the same position as he did when the initial appeal was filed. Thus, applicant should have been afforded counsel in the Court of Appeals if he was indigent at the time of the remand to the Court of Appeals. See Ayala, supra, and Douglasv. California, supra.
The State, by silence, does not contest the contention that appellant was not represented by counsel after the remand. The record, however, is not clear as to whether applicant had an attorney to represent him after we remanded his case to the Court of Appeals. We, therefore, will remand this case to the trial court to determine whether applicant had the representation of an attorney after remand.1
CLINTON, J., concurs in the result.