Mitchell Damond Martin v. State

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-18-00119-CR

MITCHELL DAMOND MARTIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 7th District Court Smith County, Texas Trial Court No. 007-0047-18

Before Morriss, C.J., Moseley and Burgess, JJ. ORDER Mitchell Damond Martin was convicted by a Smith County jury of assault on a public

servant and was sentenced to ten years’ imprisonment. The clerk’s record indicates that Martin

retained Francis Key to represent him at trial. The clerk’s record further indicates that on June 8,

2018, Key filed a notice of appeal on Martin’s behalf. There is no indication in the clerk’s record

that counsel was appointed to represent Key on appeal. Although the reporter’s record was due to

be filed on July 16, that record has yet to be filed as required by the Texas Rules of Appellate

Procedure. See TEX. R. APP. P. 34, 35.

By letter dated August 28, 2018, we advised Key that according to the court reporter,

Martin has not filed an affidavit of indigence and has not been found to be indigent. We further

advised Key that the court reporter has not received a request to prepare the record for appeal and

that Martin has neither paid nor made satisfactory arrangements to pay the reporter’s fee for

preparation of the reporter’s record. We, therefore, advised Martin that he should either pay the

fee for preparation of the reporter’s record or make arrangements to do so by September 7, 2018.

We have been advised by the court reporter that Martin has neither paid for the record nor

made arrangements to do so. Further, because Key did not respond to our letter and subsequent

attempts to contact him, we are concerned that Martin may be indigent. Finally, our file includes

a letter from Martin in which he indicates that he believes that Key was ineffective at trial and that

Key was never paid his full fee.

Based on these circumstances, which reflect that Martin might now be indigent, we abate

this matter to the trial court so that it may conduct whatever hearings are necessary to make the

2 following determinations: (1) whether Martin still desires to prosecute his appeal and (2) whether

Martin is indigent and entitled to the appointment of counsel to represent him in this appeal. If

Martin is determined to be indigent, then the trial court shall appoint counsel to represent Martin

in this appeal.

The trial court may enter any orders necessary to implement these directives. Any hearing

shall be conducted by the trial court within ten days of the date of this order. Appropriate orders

and findings shall be sent to this Court in the form of a supplemental clerk’s record within ten days

of the date of the hearing contemplated by this order. The reporter’s record of any hearing shall

be filed with this Court within ten days of the date of the hearing contemplated by this order.

All appellate timetables are stayed and will resume on our receipt of the supplemental

appellate record.

IT IS SO ORDERED.

BY THE COURT

Date: September 18, 2018