NO. 07-04-0242-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 19, 2004

______________________________

JACOB MORGAN MCCALLISTER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE COUNTY COURT OF HALE COUNTY;

NO. 2003C-569; HONORABLE BILL HOLLARS, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

ON ABATEMENT AND REMAND

Jacob Morgan McCallister appeals his conviction for possession of marijuana.

The trial court determined that appellant was indigent and at his request appointed

counsel to represent him. McCallister waived his right to a jury, pleaded nolo contendere

to the charge, and was sentenced by the trial court. His counsel filed a timely notice of
1The motion to withdraw, filed by appellant’s trial counsel, indicates the trial court’s

local rules require the appointment of a different attorney to prosecute an appeal.

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appeal, then filed a motion to withdraw with the trial court and requested appellate counsel

be appointed.1 

The trial court found that appellant continued to be indigent and qualified for an

appointed attorney to represent him on appeal. Although the court initially denied his

counsel’s motion to withdraw, on May 17, 2004, the court changed its ruling and granted

counsel’s motion to withdraw, but did not appoint another attorney to represent McCallister

on appeal. 

The certification required by Texas Rule of Appellate Procedure 25.2(a)(2) and (d)

states this is a plea-bargain case and appellant has no right to appeal, except as to matters

raised by motion filed and ruled on prior to trial. Tex. Crim. Proc. Code Ann. art. 44.02

(Vernon 1979); Tex. R. App. P. 25.2(a)(2)(A). The record, however, does not indicate there

was a plea bargain between appellant and the 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 the appeal and remand the cause to the trial court with

directions to enter an amended certification that is consistent with the record. Tex. R. App.

P. 25.2(f), 34.5(c)(2) and 37.1; See Harris v. State, 137 S.W.3d 829 (Tex.App.–Waco 2004,

no pet.); Hargesheimer v. State, 126 S.W.3d 658, 659 (Tex.App.–Amarillo 2004, pet. ref’d).
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We also direct the trial court to immediately cause notice of a hearing to be given and,

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 conclusions of law, addressing the

aforementioned subjects. Should the trial court determine that appellant 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 record the name, address, telephone number, and

state bar number of the new counsel who will represent appellant. The trial court shall

cause to be developed a supplemental clerk’s record containing the findings of fact and

conclusions of law, the amended certification and order appointing counsel, if any. The

supplemental clerk’s record must be filed with the clerk of this court on or before

September 17, 2004. Should the trial court need additional time to comply with this order,

it must request additional time before September 17, 2004.

Per Curiam

Do not publish.