                                  NO. 07-03-0273-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                     JULY 7, 2004

                         ______________________________


                        JONATHAN LEE FLORES, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 45,924-A; HONORABLE HAL MINER, JUDGE

                         _______________________________

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


                             ABATEMENT AND REMAND


      Following his plea of not guilty, appellant Jonathan Lee Flores was convicted by a

jury of arson and punishment was assessed at 10 years confinement.         The appellate

record as well as appellant’s brief and the State’s brief have been filed. Both sides have

requested oral argument. On June 11, 2004, appellant’s court-appointed counsel, Ronald
T. Spriggs, filed a motion to withdraw asserting that appellant had filed a grievance against

him with the State Bar of Texas.


       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); 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. Notwithstanding that the record and briefs have been filed, to avoid any conflict of

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

proceedings.


       The trial court has discretion to determine whether counsel should be permitted to

withdraw solely because appellant has filed a grievance against counsel. See King v.

State, 29 S.W.2d 556, 566 (Tex.Cr.App. 2000). Furthermore, to avoid further expenditure

of judicial resources, we consider it prudent to resolve this issue now rather than invite

future litigation by a post-conviction collateral attack. See Lerma v. State, 679 S.W.2d 488,

493 (Tex.Cr.App. 1982). Although counsel does not specify in his motion to withdraw the

basis for appellant’s grievance, our appellate record contains two inquiries by appellant

regarding the status of his appeal and expressions of his dissatisfaction with counsel’s

failure to communicate with him.




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       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 to grant appellate counsel’s motion to withdraw; and if so,
       2.     whether appellant still desires to prosecute this appeal and is indigent
              and entitled to new appointed counsel.


The trial court shall also cause a hearing to be transcribed. 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, which measures

may include the appointment of new 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

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 Friday, August 6, 2004. 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




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thereafter. Tex. R. App. P. 38.6(a) & (b). If the trial court denies counsel’s motion to

withdraw, the appeal will proceed in due course with the briefs currently on file.


       It is so ordered.


                                                        Per Curiam


Do not publish.




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