                                  NO. 07-04-0404-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  JANUARY 11, 2004

                         ______________________________


                      ARTURO MARTINEZ NUNEZ, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

              FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B15388-0402; HONORABLE ED SELF, JUDGE
                        _______________________________


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


                             ABATEMENT AND REMAND


      Following a plea of not guilty, appellant Arturo Martinez Nunez was convicted by a

jury of aggravated sexual assault and punishment was assessed by the trial court at 99

years in the Texas Department of Criminal Justice - Institutional Division. The appellate

record has been filed. Pending before this Court is a motion to withdraw filed by James M.

Tirey, who was appointed to represent appellant in this appeal. Via his motion, Tirey
represents that he was elected Hale County Attorney and took office on January 1, 2005.

He further asserts that his new duties will prohibit him from representing appellant and

requests that appellant be appointed new counsel.


       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. 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 appellant still desires to prosecute this appeal, and


       2.     whether appellant is indigent and desires and is entitled to 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

shall include the appointment of new counsel if appellant desires counsel. If new counsel

is appointed, the name, address, telephone number, and state bar number of the newly

appointed attorney shall be included in the order appointing him.

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       The trial court shall execute findings of fact, conclusions of law, and such orders as

it may enter regarding the aforementioned issues and cause its findings, conclusions, and

orders 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 4, 2005. Finally, if new counsel is appointed, and should the newly

appointed counsel feel it necessary to amend the appellant’s brief already on file, he must

file the amended document on or before March 7, 2005. Should an amended appellant’s

brief be filed, the State may file an amended brief within 30 days of the date of the filing of

appellant’s amended brief.


       It is so ordered.


                                                    Per Curiam




Do not publish.




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