NO. 07-04-0242-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D AUGUST 19, 2004

______________________________ JACOB MORGAN MCCALLISTER, APPELLANT V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE COUNTY COURT OF HALE C OUNTY; NO. 2003C -569; HON ORABLE B ILL HOLLA RS, JUDG E

_______________________________ Before QUINN and REAVIS and CAMPBELL , JJ. ON ABATEMENT AND REMAND Jacob Morgan McCallister appeals his conviction for p ossession of marijuana. The trial court determined that appellant was indigent and at hi s requestappointed counsel to represent him. McCallister waived his right

to a jury, pleaded nolo co ntendere to the charge, and was sentence d b y the trial court. His counsel filed a timely notice of1 The motion to withdraw, filed by appellant’s trial counsel , indicates the trial court’s

local rules require the app ointment of a different attorney to prosecute an appeal. -2- appeal, then filed a motion to withdraw with the trial court and requested appel late counsel be appointed. 1 The trial court found that appellant continued to be ind igent and qualified for an appointed attorney to represent him on appeal. Although the court in itiall y denied his counsel’s motion to withdraw, on May 17, 2004, thecourt changed its ruling and granted counsel’s motion to withdraw, but did not appoint another attorney to represent McCallister on appea l. The certification req uired by Texas R ule of Ap pellateProcedure 25.2(a)(2) and (d) states this is a plea-bargain case and appellant has no right to appea l, excep t as to mat ters raised by motio n filed a nd ruled on prior to trial. Tex. Cri m. Pro c. C ode Ann. art. 44.02 (Vernon 1979); Tex. R. App. P . 25.2(a)( 2)(A). The reco rd, however, does n ot indicate there was a plea bargain between appella nt and th e State. We also note that the record contains a pretrial motion to suppress filed by appellant and an order signed before trial, denying the motion. For these reasons, we abate th e appeal and rema nd the ca use tothe trial court wi th directions to enter an amended certification that is consisten t with the rec ord. Tex. R. App. P. 25.2(f), 34.5(c)(2) and 37.1; See Harri s v. State , 137 S.W.3d 829 (Tex.App.–Waco 2004, no pet.); Hargesheimer v. State , 126 S.W.3d 658, 659 (Tex.Ap p.–Amaril lo 2004, pet. ref’ d).-3-

We also direct the trial court to immediately ca use notice of a hearing to be given an d, thereafter, conduct a hearing to determine the following: 1. whether appellant desires to prosecute the appeal; and 2. whether appellant is indigent and entitled to appointed counsel. The trial court shall issue findings of fact and co nc lusionsof law, addressing the aforementioned subjects. Should the trial court determin e that ap pellant desires to pursue this appeal and is indigent, then we further direct the court to appoint counsel to assist in prosecuting the appeal, including in the recor d the name, address, telephone number, and stat e bar number of the new counsel who will represent appellant. The trial court shall cause to be developed a supp lemental clerk’s record containing the findings of fact an d conclusions of law, the amended certificatio n and o rder appointing counsel, if any. The supplemental clerk’s record must be file d with th e clerk of this cou rt on or b efore September

17, 2004. Should the trial court nee d additi onal time to compl y with th is order, it must request additional time before September 17, 2004.

Per Curiam
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