NO. 07-05-0369-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 22, 2005

______________________________

CRUZ TIJERINA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2004-406077; HONORABLE BRADLEY UNDERWOOD, JUDGE

_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

ORDER ON ABATEMENT AND REMAND

Appellant Cruz Tijerina has appealed his conviction and sentence following his

conviction of possession of a controlled substance and assessment of punishment that

includes 5 years confinement. The clerk’s record was filed on November 29, 2005 and the

reporter’s record has not been filed. Attorney William E. McNamara III has filed a copy of

the trial court’s Order On Motion to Withdraw as Counsel granting Mr. McNamara’s motion

to withdraw as appointed counsel for appellant. 
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The trial court has the responsibility for appointing counsel to represent indigent

defendants, as well as the authority to relieve or replace counsel. Tex. Code Crim. Proc.

Ann. art. 1.051(d) (Vernon Supp. 2004-05). See also Enriquez v. State, 999 S.W.2d 906,

907 (Tex.App.–Waco 1999, no pet.). Further, the trial court retains authority to appoint or

substitute counsel even after the appellate record has been filed. Enriquez, 999 S.W.2d

at 908. See Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (Vernon Supp. 2004-05).

Accordingly, we now abate this appeal and remand the cause to the trial court for further

proceedings. TEX. R. APP. P. 43.6. 

Upon remand the trial court shall immediately cause notice of a hearing to be given

and thereafter conduct a hearing to determine the following: 

(1) whether appellant desires to prosecute this appeal; 

(2) if appellant desires to prosecute this appeal, then whether appellant

is entitled to appointed counsel;

(3) what orders, if any, should be entered to assure the filing of

appropriate notices and documentation to dismiss appellant’s appeal

if appellant does not desire to prosecute this appeal, or, if appellant

desires to prosecute this appeal, to assure that the appeal will be

diligently pursued.

Should it be determined that appellant desires to continue the appeal, then the trial

court shall also take such measures as may be necessary to assure appellant effective

assistance of counsel. If new counsel is appointed, the name, address, telephone number,

and state bar number of counsel shall be included in the order appointing new counsel. 

The trial court shall execute findings of fact, conclusions of law, and such orders as

the court may enter regarding the aforementioned issues and cause its findings and
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conclusions to be included in a supplemental clerk's record. A supplemental reporter's

record of the hearing shall also be included in the appellate record. The trial court shall file

the supplemental clerk's record and the supplemental reporter's record with the Clerk of

this Court by January 23, 2006. Finally, if new counsel is appointed, appellant's brief will

be due within 30 days after the deadline for filing of the supplemental clerk's record and

the supplemental reporter's record and the State's brief will be due within 30 days

thereafter. TEX. R. APP. P. 38.6(a) & (b). 

It is so ordered. 

 Per Curiam 

Do not publish.