
NO. 07-04-0500-CR



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL A



JANUARY 25, 2005



______________________________





MATTHEW GONZALES A/K/A MATHEW GONZALES, APPELLANT



V.



THE STATE OF TEXAS, APPELLEE





_________________________________



FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;



NO. 48,924-C; HONORABLE PATRICK A. PIRTLE, JUDGE



_______________________________



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

ORDER ON ABATEMENT AND REMAND

     Appellant Matthew Gonzales has appealed his conviction and sentence following his conviction of aggravated assault with a deadly weapon and assessment of punishment that includes 9 years confinement.  The clerk’s record was filed on October 8, 2004, and the reporter’s record on January 10, 2005.  Pending before this Court is a motion to withdraw filed by appointed counsel W. Brooks Barfield, Jr., who represented appellant at trial, in which counsel states he was not appointed to represent appellant on appeal.

     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. 2004-05).  
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. 
See
 Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (Vernon Supp. 2004-05).  Accordingly, we now abate this appeal and remand the cause to the trial court for further proceedings.  
Tex. R. App. P.
 43.6. 

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 counsel's motion to withdraw; and if so, 


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 February 25, 2005.  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 thereafter.  
Tex. R. App. P.
 38.6(a) & (b). 

It is so ordered. 

                                               				Per Curiam 

Do not publish.



