                                  NO. 07-03-0105-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                     APRIL 25, 2003

                         ______________________________


                      SAMMY RAY ESCOBAR, JR., APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 40,383-E; HONORABLE ABE LOPEZ, JUDGE

                         _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                              ABATEMENT AND REMAND


      Pursuant to a plea of guilty for aggravated assault with a deadly weapon, on June

14, 1999, appellant was granted deferred adjudication and placed on community

supervision for ten years plus $2,000 restitution. After hearing evidence on the State’s

amended motion to proceed with an adjudication of guilt for violations of the conditions of
community supervision, on January 16, 2003, the trial court adjudicated appellant guilty of

the charged offense and assessed punishment at 14 years confinement. Appellant filed

a pro se notice of appeal and docketing statement. At the time the docketing statement

was filed, appellant indicated he was indigent and was awaiting the appointment of counsel

by the trial court. On March 19, 2003, the District Clerk filed a request for extension of time

in which to file the clerk’s record indicating that no payment nor arrangement for payment

had been made. After the request was granted extending the time to April 17, 2003, a

second request was filed requesting until May 19, 2003, due to nonpayment. Pursuant to

Rules 35.3(c) and 37.3(a)(2) of the Texas Rules of Appellate Procedure, we now abate the

appeal and remand the cause to the trial court for further proceedings. The clerk’s record

will be due 30 days following reinstatement of this appeal.


       We recognize that article 42.12, section 5(b) of the Texas Code of Criminal

Procedure Annotated (Vernon Supp. 2003), expressly denies a defendant the right to

appeal from a trial court’s determination to adjudicate guilt. Connolly v. State, 983 S.W.3d

738, 741 (Tex.Cr.App. 1999). However, appeals of proceedings after an adjudication of

guilt, including assessment of punishment, pronouncement of sentence, and granting of

community supervision are not foreclosed by article 42.12, section 5(b).


       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

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       2.     whether appellant is indigent and entitled to appointed counsel and
              preparation of the appellate record without payment.


The trial court shall cause the 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 counsel. If counsel is appointed, the name, address,

telephone number, and state bar number of said counsel shall be included in the order

appointing counsel. Finally, 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 record of the hearing shall also be included in the appellate record. Finally,

the trial court shall file the supplemental clerk's record and the supplemental reporter's

record with the Clerk of this Court by Monday, June 9, 2003.


       It is so ordered.


                                                   Per Curiam


Do not publish.




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