Order filed March 6, 2015

In The

Eleventh Court of Appeals ___________

No. 11-14-00359-CR

___________

ALEJANDRO DANIEL AVILA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR43438

O R D E R

Alejandro Daniel Avila was convicted of two counts of aggravated sexual 

assault of a child, for which he received consecutive twenty-year sentences. Avila 

timely filed a pro se notice of appeal, but the judgments reflect that Avila was 

represented at trial by an attorney. The appeal has been unduly stalled due in part 

to the lack of an appellate record. The court reporter and the district clerk have 

informed us that Avila has not submitted any request to have the records prepared, 
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has not filed a written designation, has not paid for the reporter’s record or the 

clerk’s record, and has made no arrangements to pay for either record. It is not 

clear from the documents on file in this case whether Avila is indigent and cannot 

afford to pay for the record. Nor is it clear whether Avila’s counsel at trial was 

appointed or retained or whether he is entitled to court-appointed counsel on

appeal.

An indigent criminal defendant has a constitutional right to a free appellate 

record in a first appeal of right. See Griffin v. Illinois, 351 U.S. 12, 18–19 (1956); 

Abdnor v. State, 712 S.W.2d 136, 139 (Tex. Crim. App. 1986). An indigent 

criminal defendant is also entitled to have counsel appointed on appeal. TEX.

CODE CRIM. PROC. ANN. art. 1.051(d)(1) (West Supp. 2014). We will abate the 

appeal so that the trial court, who is in the best position to make these 

determinations, may resolve the issues related to the appellate record and appellate 

counsel. 

The trial court is directed to conduct a hearing to determine the following:

1. Whether Avila desires to prosecute his appeal;

2. Whether Avila is indigent;

3. If indigent, whether Avila is entitled to a free appellate 

record (see TEX. R. APP. P. 20.2); and

4. If indigent, whether counsel should be appointed for appeal.

The trial court is requested to make appropriate findings and recommendations. If 

it is determined that Avila is indigent and is exercising his right to represent 

himself, the trial court must develop evidence as to whether Avila’s decision to 

proceed without counsel is knowingly and intelligently made and enter findings of 

fact and conclusions of law. Faretta v. California, 422 U.S. 806 (1975); Ex parte 

Davis, 818 S.W.2d 64 (Tex. Crim. App. 1991); Hubbard v. State, 739 S.W.2d 341 

(Tex. Crim. App. 1987); Webb v. State, 533 S.W.2d 780 (Tex. Crim. App. 1976). 
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In the event that the trial court determines that Avila is not indigent, the

appeal may be dismissed for want of prosecution. TEX. R. APP. P. 37.3(b).

The clerk of the trial court is directed to prepare and forward to this court a 

clerk’s record containing the findings, recommendations, and any orders of the trial 

court. The court reporter is directed to prepare and forward to this court the 

reporter’s record from the hearing. The records are due to be filed in this court on 

or before March 27, 2015.

The appeal is abated.

PER CURIAM

March 6, 2015

Do not publish. See TEX. R. APP. P. 47.2(b). 

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.