Cirilo Diaz, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: October 13, 2011
• Docket: 07-11-00297-CR
• Status: Published

Opinion

NO. 07-11-0297-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

OCTOBER 13, 2011

______________________________

CIRILO DIAZ, JR., APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. B17995-0904; HONORABLE ED SELF, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND

In 2009, Appellant Cirilo Diaz, Jr., was convicted of burglary of a habitation1 and

sentenced to five years confinement and assessed a $750 fine. Punishment was

suspended in favor of five years community supervision. At a hearing on the State's

1 Tex. Penal Code Ann. § 30.02 (West 2011). motion to revoke, Appellant entered a plea of true to the State's allegations and the trial

court found he had violated the terms and conditions of community supervision and

revoked his community supervision. The trial court assessed the original sentence.

Appellant perfected this appeal.

By letter dated September 6, 2011, this Court granted the Hale County District

Clerk an extension of time in which to file the clerk's record on the ground that Appellant

had neither paid for nor made arrangements to pay for the record. By that same letter,

counsel was directed to certify whether he had complied with Rule 35.3(a)(2) regarding

the clerk's record. In response, counsel filed two motions: (1) Motion to Withdraw and

(2) Motion to Extend Deadline to File Clerk's Record.

By the Motion to Withdraw, which does not comply with Rule 6.5 of the Texas

Rules of Appellate Procedure, counsel represents he was retained by Appellant for the

purpose of filing a motion for new trial.2 Appellant's family indicated it would hire an

appellate attorney to pursue an appeal and later advised counsel they were financially

unable to do so. After the motion for new trial was overruled, counsel filed the notice of

appeal to protect Appellant and awaited instructions from Appellant. Appellant did not

retain new counsel on appeal and did not pay for the clerk's record.3 According to

2 Without a clerk's record, we cannot speculate whether Appellant proceeded without payment of costs during trial. 3 The expense for the reporter's record, which was filed on September 8, 2011, was incurred by counsel.

2 counsel, Appellant contacted him and expressed a desire not to pursue this appeal but

did not respond to further contact from counsel.

By the motion to extend the deadline in which to file the clerk's record,4 counsel

recites basically the same facts as in his motion to withdraw. In the interest of judicial

economy, we abate this appeal and remand the cause to the trial court for further

proceedings.

Upon remand, the trial court shall utilize whatever means necessary to determine

whether counsel's motion to withdraw is well taken. Should the motion to withdraw be

granted, then the trial court shall determine the following:

1. whether Appellant desires to prosecute this appeal;

2. whether Appellant is indigent and entitled to appointed counsel; and

3. whether Appellant is entitled to a free appellate record.

Should it be determined that Appellant does want to continue the appeal and the trial

court determines he is entitled to appointed counsel, the name, address, telephone

number, and state bar number of appointed counsel shall be provided to the Clerk of

this Court. The trial court shall execute findings of fact and conclusions of law, and shall

cause its findings, conclusions, and any necessary orders to be included in the clerk's

record to be filed with the Clerk of this Court on or before November 14, 2011. The

motion for extension of time in which to file the clerk's record filed by counsel is

4 A motion for extension of time in which to file the appellate record is customarily filed by the trial court clerk or court reporter, not by counsel. 3 rendered moot. Appellate deadlines are suspended and, should Appellant wish to

pursue this appeal and the trial court finds he is indigent and entitled to appointment of

counsel, the clerk's record will be due thirty days after appointment of counsel.

It is so ordered.

Per Curiam

Do not publish.