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


                                     ORDER
      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,
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.




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