Terry Wayne Stewart v. State

• Court: Court of Appeals of Texas
• Decided: January 6, 2006
• Docket: 07-05-00398-CR
• Status: Published

Opinion

NO. 07-05-0398-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JANUARY 6, 2006

______________________________

TERRY WAYNE STEWART,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 251st DISTRICT COURT OF POTTER COUNTY;

NO. 33,132-C; HON. PATRICK PIRTLE, PRESIDING _______________________________ ON ABATEMENT AND REMAND _______________________________

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

Terry Wayne Stewart appeals from the trial court's denial of his petition for "bill of review." The clerk's record was due to be filed on December 5, 2005. On December 13, 2005, the clerk filed her first extension request to file the record because appellant has not paid or made arrangements to pay for the record and no attorney has been appointed on appeal.

Accordingly, we abate this appeal and remand the cause to the 251st District Court of Potter County (trial court) for further proceedings. 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,

2. whether appellant is indigent and entitled to appointed counsel and a free record on appeal.

The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings of fact and conclusions of law addressing the foregoing issues, 2) cause to be developed a supplemental clerk's record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter, and 3) cause to be developed a reporter's record transcribing the evidence and arguments presented at the aforementioned hearing. Additionally, the district court shall then file the supplemental record and reporter's record transcribing the hearing with the clerk of this court on or before February 6, 2006. Should further time be needed by the trial court to perform these tasks, then same must be requested before February 6, 2006.

It is so ordered.

Per Curiam

Do not publish.

.10. Id. As a result, we conclude that modifying the date in the enhancement paragraph here does not implicate art. 28.10 and, therefore, the trial court did not violate the terms of that provision. Id.

Accordingly, we affirm the judgment.

Brian Quinn

Chief Justice