Bret Alan Avery v. State

NO. 07-09-0262-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

AUGUST 27, 2009
______________________________

BRET AVERY, APPELLANT

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

NO. 19996-C; HONORABLE ANA ESTEVEZ, JUDGE
_______________________________

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

ORDER OF ABATEMENT AND REMAND

On August 3, 2009, appellant, Bret Avery, filed a notice of appeal from a judgment

entered by the 251st District Court of Potter County, Texas, in cause number 19,996-C. On

August 12, appellant’s trial counsel filed a motion to withdraw from representation of

appellant. This motion does not state that counsel notified appellant in writing of the right

to object to the withdrawal, as required. See TEX . R. APP. P. 6.5(a)(4); Rivera v. State, 130

S.W.3d 454, 458 (Tex.App.–Corpus Christi 2004, no pet.). Accordingly, we deny counsel’s

motion to withdraw.
However, because counsel was appointed, states that appellant is indigent, and

requests appointment of new appellate counsel, we will abate and remand this cause.

Upon remand, the judge of the trial court is directed to immediately cause notice to be

given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute

this appeal; (2) if appellant desires to prosecute this appeal, whether appellant’s counsel

should be allowed to withdraw from representation of appellant; (3) if appellant desires to

appeal, whether appellant is indigent; and (4) if appellant is indigent, whether appellant

should be appointed new appellate counsel. If the trial court determines that new counsel

should be appointed to represent appellant on appeal, the court should cause the Clerk of

this Court to be furnished the name, address, and State Bar of Texas identification number

of the newly-appointed attorney.

The trial court is directed to: (1) conduct any necessary hearings; (2) make and file

appropriate findings of fact, conclusions of law, and recommendations and cause them to

be included in a supplemental clerk’s record; (3) cause the hearing proceedings to be

transcribed and included in a supplemental reporter’s record; (4) have a record of the

proceedings made to the extent any of the proceedings are not included in the

supplemental clerk’s record or the supplemental reporter’s record; and (5) cause the

records of the proceedings to be sent to this court. TEX . R. APP. P. 38.8(b)(3). In the

absence of a request for extension of time from the trial court, the supplemental clerk’s

record, supplemental reporter’s record, and any additional proceeding records, including

2
any orders, findings, conclusions, and recommendations, are to be sent so as to be

received by the clerk of this court not later than September 25, 2009.

Per Curiam

Do not publish.