NO. 07-02-0310 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C AUGUST 30 , 2002

______________________________ ANTONIO MINDIETA, APPE LLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 97-423925; HON ORABLE JIM B . DARNE LL, JUDGE

_______________________________ Before QUINN and REAVIS and JOHNSON, JJ. Appella nt Antonio Mind ieta has app ealed fro m an Order Denying Motion for DNA Testing. He has filed a motion in this court seek ing appointment of counsel for appellate purposes. We abate and remand. On June 19, 2002, the Jud ge of the 140th Di strict Court of Lubbock County entered an order in cause num ber 97-423925 denying a motion by which appell ant sought DNA2

testing and appointm ent of counsel to represent him in the proceeding. Ap pella nt t im ely filed notice of appeal. By m otion fi led with thi s court appel lant seeks appointment of counsel to ass ist in his app eal. Concurrently w ith his motion for appointm entof counsel on appeal, appellant filed an affidavit claiming indigence. The clerk’s record has not bee n filed. The district clerk has filed a request for extension of time for filing of the r ecord because appellant has not paid for or m ade arrangement

s to pay for the record. Chapter 64 of the Code of Criminal Procedure sets outprocedu res for convicted persons to m ove for court-ordered forensic DN A testing. See T EX . C R IM . P ROC . C ODE A NN . arts. 64.01-64.05 (Vernon Supp. 200 2). Article 64.01(c) provides that a conv icted person is entitled tocounse l during a pro ceeding under Chapter 64. A rticle 64.01(c) has been interpreted as providing indigent persons the statutory right to counsel in an appeal under Chapter 64. See Grayv. State , 69 S.W.3d 835, 83 7 (Tex .App. --Waco 2002, no pe t. h.). In a proceeding under Chapter 64, the convicting court is to determ ine whether the convicted person is indigent. See art. 64.01(c). If theperson is determined tobe indigent, the convicting court is to appoint counsel. Id

. Accordingl y, we abate t he appea l and rem and the case to the tr i al cou rt. Upon remand, the trial co urt is direc ted to ( 1 ) imm ediately cause notice to be given of and to3

conduct a hearing to determ ine whether appellant is indigent ; ( 2) appoint counsel to representappellant on appeal if appellant i s determ ined to be indigent; (3) determine whether appell ant is enti tled to have th e clerk’s recor d furnishe d without charge; (4) make a ppropriate o rde rs to as sur e th at t he c lerk ’s rec ord w ill be pro m ptly filed if a ppe llant

is determ ined to be entitled to have the clerk’s record furnished without charge; (5) ma ke and file a ppr opr iatefind ingsof f

act and con clus ions

of l aw and cau se t hem

to b e inc lude d in a clerk’s record; (6) cause t he hearing proceedings to be transc ribed and included in a reporter’s record; and (7) have a record o f the proceedings m ade and forwa rded to the clerk of this court to the ex

tent an y of th e procee dings are not included in the clerk’srecord or the reporter’s record. I n the absence of a requ est for ex tension of tim e fro m t he trial court, the clerk ’s record on re m and, rep ort er’s record of the hearing and proceedings pursuantto th is or der, and any addi tional proceedi ng records, i ncludi ng any orders, findi ngs, conclusions an d r ec omm endations, are to be sent so as to be received by the clerk of this court not later than September 30, 2002.

Per Curiam Publish.