                                  NO. 07-00-0306-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 DECEMBER 18, 2000

                         ______________________________


                     FRANCISCO JAVIER OLVERA, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                        _______________________________

            FROM THE 263RD DISTRICT COURT OF HARRIS COUNTY;

                  NO. 824786; HONORABLE JIM WALLACE, JUDGE
                       _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

                       ORDER OF ABATEMENT AND REMAND

      This is an appeal by appellant Francisco Javier Olvera from a conviction and

sentence in cause number 824786 in the 263rd District Court of Harris County, Texas (the

trial court), for possession of a firearm before the fifth anniversary of his release from

confinement pursuant to a prior felony conviction. As part of a plea bargain, appellant

executed a waiver of his right to appeal if the plea bargain agreement between appellant,

his attorney, and the prosecutor was accepted by the trial court. The trial court accepted

the plea bargain, found appellant guilty, and sentenced appellant to the agreed-upon term
of five years confinement in the Texas Department of Criminal Justice, Institutional

Division. Despite execution of a waiver of his right to appeal, appellant signed and filed

(1) a pro se notice of appeal and request for permission of the trial court to appeal; (2) a

document entitled Pauper’s Oath on Appeal by which appellant verified that he was too

poor to employ counsel on appeal and requested appointment of counsel for appeal. The

trial court advised appellant that counsel for appeal would not be appointed, and so noted

on appellant’s Pauper’s Oath.


       The appellate court clerk has received and filed the trial court clerk’s record. The

trial court clerk’s record contains a waiver of appellant’s right to have a court reporter

record his guilty plea proceeding, and no reporter’s record has been received by the

appellate court clerk.


       The trial court clerk’s record reflects that, prior to appellant’s conviction, counsel

(“trial counsel”) was appointed to represent appellant. No order appears of record

relieving trial counsel from his duty to represent appellant. No separate appointment of

counsel has been made for appeal. No appearance has been made by any counsel for

appellant on appeal. See TEX . CRIM . PROC . CODE ANN . arts. 1.051.(c),(d), 26.04(a)

(Vernon Supp. 2000)1; TEX . R. APP . P. 6.4(b).


       Pursuant to prior abatement and remand by this court, the trial court conducted a

hearing and has forwarded a reporter’s record of such hearing for filing with the appellate


       1
       Further references to an article of the Code of Criminal Procedure will be by
reference to “Article _.”

                                             2
clerk. The record of the trial court hearing reflects findings and conclusions of the trial

judge that appellant waived his right to appeal as part of the plea bargain process, the plea

bargain was honored, and that appellant is not entitled to appointed counsel for an appeal

from his conviction, but that appellant may prosecute his appeal pro se. As part of the

record of such hearing, the trial court attached copies of appellant’s waiver of appeal and

other rights and written admonishments of appellant which were part of the plea bargain

process, and references to legal authority upon which the trial court relied in reaching the

conclusion that appellant is not entitled to appointed counsel on appeal, particularly noting

the case of Blanco v. State, 18 S.W.3d 218 (Tex.Crim.App. 2000).


       In Blanco, the Court of Criminal Appeals reviewed an appeal in which a defendant

was convicted of burglary by a jury. The defendant then made an agreement with the

prosecution in which the defendant agreed to waive his right to appeal, in exchange for the

prosecution’s promise to recommend to the trial court that the court assess a 16-year

sentence.   The prosecution fulfilled its agreement by recommending the trial court

sentence Blanco to 16 years confinement. The trial court followed the prosecution’s

recommendation and sentenced defendant to 16 years incarceration. The defendant then

filed a notice of appeal, despite his agreement not to do so. The Court of Criminal Appeals

noted, in affirming dismissal of the appeal by the court of appeals, that the considerations

in post-conviction waiver cases are different than the considerations in pretrial waiver

cases such as Ex parte Townsend, 538 S.W.2d 419 (Tex.Crim.App. 1976). Blanco, 18




                                             3
S.W.3d at 219-20. In referencing Townsend, however, the Blanco Court did not indicate

that Townsend was no longer viable.


       In Townsend, the defendant agreed in writing that he knowingly and voluntarily

waived his right of appeal, pled guilty, and punishment was assessed by the trial court.

The defendant then timely filed a written notice of appeal. The trial court entered an

“Order Denying Defendant’s Notice of Appeal.” On application for writ of habeas corpus,

the Court of Criminal Appeals posed the issue as “. . . whether a defendant is bound by

his agreement to waive appeal when the agreement is made prior to trial.” In answering

the question, the Court held “. . . as a matter of law, that a waiver of right of appeal made

prior to trial cannot . . . be made knowingly and intelligently. Such a waiver is therefore not

binding on a defendant.” Id. at 420.


       Our appellate jurisdiction has been invoked by appellant’s timely notice of appeal,

see State v. Riewe, 13 S.W.3d 408, 410 (Tex.Crim.App. 2000), at least to the extent that

we must determine if we have jurisdiction. State v. Roberts, 940 S.W.2d 655, 657

(Tex.Crim.App. 1996). We are mindful that appellant’s notice of appeal is a general notice,

and that such a notice has limits as to issues which can be asserted when appellant’s

conviction was pursuant to a plea bargain. See TEX . R. APP . P. 25.2(b)(3); Perez v. State,

4 S.W.3d 305, 306-07 (Tex.App.--Houston [1st Dist.] 1999, no pet.). But, a notice of appeal

may be amended under certain circumstances in a criminal case, see TEX . R. APP . P.

25.2(d), Perez, 4 S.W.3d at 306-07, and a claim that a defendant’s plea of guilty or nolo

contendere was not voluntary can be asserted under a general notice of appeal, even


                                              4
though the plea was pursuant to a plea bargain honored by the trial court. See Flowers

v. 935 S.W.2d 131, 133-34 (Tex.Crim.App. 1996) (considering former Rule 40(b)(1));

Perez, 4 S.W.3d at 305; Hernandez v. State, 986 S.W.2d 817, 820 (Tex.App.--Austin,

1999, pet. ref’d); but see Villanueva v. State, 977 S.W.2d 693, 695-96 (Tex.App.--Fort

Worth 1998, no pet.).


       Without expressing any opinion as to the matter currently pending on behalf of

appellant, we note our awareness that many appeals from plea-bargained convictions are

eventually dismissed, or are the subject of briefs positing that the appeal lacks merit. See

Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Nevertheless, the Legislature has provided that if an indigent defendant is entitled to and

requests appointed counsel, counsel is to be appointed as soon as possible, Article

1.051(c), and that an indigent defendant charged with a felony or a misdemeanor

punishable by imprisonment is entitled to have an attorney appointed to represent him or

her. Article 26.04. An attorney appointed to represent such an indigent defendant shall

represent the defendant until charges are dismissed, the defendant is acquitted, appeals

are exhausted, or the attorney is relieved of his duties by the court or is replaced by

another attorney. Id. In addition to the foregoing provisions, the Code of Criminal

Procedure specifically provides that an eligible indigent defendant is entitled to have the

trial court appoint an attorney to represent him or her in an appeal to a court of appeals.

Article 1.051(d)(1).




                                             5
       The Legislature has mandated that appellant is entitled to appointed counsel for

appeal if he is indigent and desires to prosecute his appeal. Id. Appellant is entitled to

have previously-appointed trial counsel continue to represent him, unless that counsel has

been relieved of his duties by the trial court, or has been replaced by another attorney.

Article 26.04; Perez, 4 S.W.3d at 307. The record before us has no evidence of either

such occurrence having taken place. In any event, unless either (1) appellant does not

wish to prosecute his appeal, (2) is not indigent, or (3) has another counsel representing

him on appeal, the Legislature has mandated that he is entitled to appointed counsel on

this appeal.


       Accordingly, this appeal is abated and the cause is remanded to the trial court.

TEX . R. APP . P. 43.6. The trial court is directed to assure that if appellant is indigent and

desires to prosecute this appeal, (1) appointed counsel is provided to represent appellant

on appeal to the Court of Appeals (either previously-appointed, or newly-appointed), and

(2) appellant is provided a free transcription of the plea proceedings, if the proceedings

were recorded despite appellant’s waiver of a court reporter. See Perez, 4 S.W.3d at 307.

The trial court should cause the clerk of this court to be furnished the name, address, and

State Bar of Texas identification number of the attorney to be representing appellant.


       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 appellant desires to prosecute this

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

(3) if appellant is indigent and desires to prosecute this appeal, whether a reporter’s record


                                              6
was made of the plea proceedings, and if so, whether any reason exists to justify not

providing a free transcription to appellant; (4) if appellant is indigent and desires to

prosecute this appeal, whether appellant’s previously-appointed counsel has been or

should be replaced and different counsel for appeal appointed; (5) if appellant is indigent

and appellant’s previously-appointed counsel has not been replaced and is appropriate

counsel to represent appellant as appeal counsel, then 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.


       The trial court is further directed to: (1) conduct any necessary hearings; (2) make

and file appropriate findings of fact, conclusions of law and recommendations, and cause

them to be included in a supplemental clerk’s record; (3) cause the hearing proceedings

to be transcribed and included in a reporter’s record of the hearing; and (4) have a record

of the proceedings made to the extent 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 extension of time from the trial court, the supplemental clerk’s record, reporter’s

record of the hearing, and any additional proceeding 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 February 5, 2001.


                                                          Per Curiam




                                              7
Publish.




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