                                    NO. 07-01-0267-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL D

                                      JULY 17, 2001

                          ______________________________


                            STEVE D. MCNEAL, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 99-431348; HONORABLE JIM B. DARNELL, JUDGE

                          _______________________________

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


       Appellant Steve D. McNeal attempts to appeal from his conviction of assault on a

public servant and the resulting sentence of confinement for five years in the Institutional

Division of the Department of Criminal Justice. Appellant filed a general pro se notice of

appeal on June 27, 2001, and a motion to have counsel appointed for him on the same

date. While we have not yet received the clerk’s record in this case, we have been

provided with a certified copy of an order entered by the trial court on July 5, 2001, stating

that the sentence was based on a plea bargain agreement which precluded the right to
appeal. The trial court thus denied the notice of appeal and the motion for appointment

of counsel.


       In a criminal case, a notice of appeal may be perfected by giving notice in writing

and filing it with the court clerk. Tex. R. App. P. 25.2(b)(1). However, if the appeal is from

a judgment rendered on a plea of guilty or nolo contendere and the punishment assessed

did not exceed that recommended by the prosecutor, the notice must “(A) specify that the

appeal is for a jurisdictional defect; (B) specify that the substance of the appeal was raised

by written motion and ruled on before trial; or (C) state that the trial court granted

permission to appeal.” Tex. R. App. P. 25.2(b)(3). As already noted, the trial court has

denied permission to appeal, and appellant has filed only a general notice of appeal.


       However, even if we accept as true the statement in the trial court’s order that the

sentence was based upon a plea bargain agreement which precluded a right to appeal,

denying permission to appeal by the trial court does not foreclose all possible issues that

could be raised on appeal. Perez v. State, 4 S.W.3d 305, 306 (Tex.App.--Houston [1st

Dist.] 1999, no pet.). In Perez, appointed counsel filed a general notice of appeal and then

sent the court a letter stating he should no longer be considered as counsel of record

because the court had denied permission to appeal to a defendant who accepted a plea

bargain. The court then issued an oral order contradicting its prior order appointing

appellate counsel. Although the court of appeals declined to say what merit any issue

might have in the appeal or how the court might rule, it noted that an amended notice of

appeal could be filed any time before an appellant’s brief was filed and opined that the

defendant was entitled to appointed counsel on appeal. Id. at 307. Since we have no


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record before us at this time, we likewise can neither speculate as to the merit of any

issues appellant may raise on appeal, nor is it for us to determine what jurisdictional issues

appellant should raise or what arguments may support those issues. However, we believe

appellant is entitled to appointed counsel if indigent.


       Therefore, this appeal is abated and remanded to the 364th District Court of

Lubbock County for a hearing to determine if counsel should be appointed for appellant.

Upon remand, the judge of the trial court shall immediately cause notice to be given and

conduct a hearing to determine:


       1. Whether appellant wishes to pursue his appeal.

       2. If appellant does wish to pursue his appeal, whether he is presently
       indigent and, if so, whether counsel should be appointed to represent him.

       3. If it be determined that an attorney should be appointed, the name,
       address, and State Bar of Texas identification number of the attorney
       appointed.

       4. If any other orders are necessary to ensure the proper and timely pursuit
       of appellant’s appeal.


In support of its determination, the trial court will prepare and file written findings of fact

and conclusions of law and cause them to be included in a supplemental clerk’s record.

The hearing proceedings shall be transcribed and included in a supplemental reporter’s

record. The supplemental clerk’s and reporter’s records shall be submitted to this clerk

no later than August 17, 2001.


       It is so ordered.




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                      Per Curiam


Do not publish.




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