NO. 07-04-0080-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL C JULY 8, 2004

______________________________ CHARLES GIBBS, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE COUNTY COURT AT LAW NO. TWO OF LUBBOCK COUNTY; NO. 2003- 484936; HONORABL E DRUE FARMER, J UDGE

_______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
ORDER OF ABATEMENT AND REMAND Appellant

Charles Gibbs has given notice of appeal in cause n umber 2003-484,936 in the Coun ty Court

at Law N o. 2 of Lu bbock Co unty, Texas (the tri al court) . The ap pellate court clerk rec eived an d filed t he trial court cle rk’s reco rd on April 2, 2004. The tri al court clerk’s record reflects that appellant filed an Affidavit of Inabil ity to Emplo y Counsel on A ppeal and Inability to Pay or Give Security for Clerk’s Record and Reporter’s Record

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There is not an order from the trial court determining indigency and appointment of counsel.

In Texas, every perso n convic ted of a c rime has a statutor y right to appeal. See T EX
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. C ODE A NN . § 44.02 (Vernon 19 79); N guyen v. State , 11 S.W.3d 376, 378-79 (Tex.App.-Houston [14 th Dist.] 20 00, no pe t. h); Johnson v. State , 885 S.W.2d 641, 644 (Tex.App.
- Waco 1994, pet. ref'd). The Sixth and Fourteenth Amendments of the United States C onstituti on guara ntee to a criminal defendant the right to counsel on a first appeal. See Douglas v. California , 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). An attorney must be appointed by the state to represent an in digent defendant on the first appeal. See McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S . 429, 43 5, 108 S. Ct. 1895, 1900, 100 L.Ed. 2d 440 (19 88). In T exas, th e trial c ourt has b een desi gnated to appointthe appellate attorney for an eligib le indig ent defen dant. See T EX
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. C ODE A NN . §§ 1.05 1(d)(1), 2 6.04(a). Accordingly, this appeal is abated and the cause is remanded to the trial court. T EX
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. P. 43.6. Upon remand, the judge of the trial court is directed to cause notice to be given of and to conduct a hearing to determine: (1) whether appella nt desire s to prose cute th is appeal; (2) if appellant desires to prosecute this a ppeal, then whether appel lant i s indigen t; (3) if it is determined that appellant is indigen t, whether counsel should b e appointed to repres ent appe llant. If counsel is appointed to represent appella nt, then the trial court is directed to cause the n ame, add ress, and State Bar of Texas identification number of the ne w attorne y to be fu rnished to the cl erk of this court; and, (4) what orders, if any, should be entered to assure the filing of appro priate no tices and document ation to-3-

dismiss appellant’s appeal if appe llant does not desire to prosecute this appeal, or, if appellant

desires to prosecute this appeal, to assure that the appeal will be diligen tly pursued.
The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropri ate findings of fact, conclusions of law and recommendation s, and cause them to be included in a supp lemental clerk’s record; (3) cause the hearing proceedings to be transcribed and included in a reporter’s record; and, (4) have a record of the proceedings made to the ex

te nt any of the proceedings are not included in the supplemental clerk’s record or the reporter’s record of the hearing. In the absence of a request for e xtension of time from the trial court, the supplemental clerk’s record, reporter’s record of the hearing, and any additional p roceedin g records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than August 6, 2004.

Per Curiam

Do not publish.