                                  NO. 07-06-0211-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                               SEPTEMBER 5, 2006
                         ______________________________

                              ERSKINE L.T. ALLEN, JR.,

                                                               Appellant

                                            v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

                  NO. 22, 580; HON. CECIL PURYEAR, PRESIDING
                       _______________________________

                             Abatement and Remand
                        _______________________________

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

      Erskine L.T. Allen, Jr. (appellant), acting pro se, perfected an appeal from the trial

court’s denial of his motion for DNA testing. In perfecting the appeal, he also requested

that counsel be appointed to represent him. None was appointed. Yet, at the time

appellant moved for testing, he was entitled to appointed counsel upon proof of indigency.

See Spruce v. State, 06-05-00077-CR, 2005 Tex. App. LEXIS 6548 (Tex. App.–Texarkana

August 17, 2005) (explaining the status of the law); Gray v. State, 69 S.W.3d 835, 837
(Tex. App.--Waco 2002, no pet.) (requiring appointment).1 Consequently, we abate the

appeal and remand the cause to the 137th District Court of Lubbock County (trial court) for

further proceedings. 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 appellant desires to prosecute the appeal; and

         2.       whether appellant is indigent.

         We further direct the trial court to issue findings of fact and conclusions of law

addressing the foregoing subjects. Should the trial court find that appellant desires to

pursue his appeal, is indigent, and has no counsel, then we further direct it to appoint

counsel to assist in the prosecution of the appeal. The name, address, phone number,

telefax number, and state bar number of the new counsel, if any, who will represent

appellant on appeal must also be included in the court’s findings of fact and conclusions

of law. Furthermore, the trial court shall also cause to be developed 1) a supplemental

clerk’s record containing the findings of fact and conclusions of law and 2) a reporter’s

record transcribing the evidence and argument presented at the aforementioned hearing.

Additionally, the trial court shall cause the supplemental clerk’s record to be filed with the

clerk of this court on or before October 2, 2006. Should additional time be needed to

perform these tasks, the trial court may request same on or before October 2, 2006.

         It is so ordered.

                                                               Per Curiam

Do not publish.



         1
          Sinc e then, the law ha s ch ang ed a nd o ne re que sting a ppointed c oun sel m ust c lear other h urdles.
Those hurdles are explained in art. 64.01(c) of the Texas Code of Criminal Procedure and Spruce v.
State , 06-0 5-00 077 -CR , 2005 T ex. A pp. L EX IS 6548 (T ex. App.–T exarka na Aug ust 17, 2005).
