NO. 07-03-0105-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 25, 2003
______________________________
SAMMY RAY ESCOBAR, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 40,383-E; HONORABLE ABE LOPEZ, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
ABATEMENT AND REMAND
Pursuant to a plea of guilty for aggravated assault with a deadly weapon, on June
14, 1999, appellant was granted deferred adjudication and placed on community
supervision for ten years plus $2,000 restitution. After hearing evidence on the State’s
amended motion to proceed with an adjudication of guilt for violations of the conditions of
community supervision, on January 16, 2003, the trial court adjudicated appellant guilty of
the charged offense and assessed punishment at 14 years confinement. Appellant filed
a pro se notice of appeal and docketing statement. At the time the docketing statement
was filed, appellant indicated he was indigent and was awaiting the appointment of counsel
by the trial court. On March 19, 2003, the District Clerk filed a request for extension of time
in which to file the clerk’s record indicating that no payment nor arrangement for payment
had been made. After the request was granted extending the time to April 17, 2003, a
second request was filed requesting until May 19, 2003, due to nonpayment. Pursuant to
Rules 35.3(c) and 37.3(a)(2) of the Texas Rules of Appellate Procedure, we now abate the
appeal and remand the cause to the trial court for further proceedings. The clerk’s record
will be due 30 days following reinstatement of this appeal.
We recognize that article 42.12, section 5(b) of the Texas Code of Criminal
Procedure Annotated (Vernon Supp. 2003), expressly denies a defendant the right to
appeal from a trial court’s determination to adjudicate guilt. Connolly v. State, 983 S.W.3d
738, 741 (Tex.Cr.App. 1999). However, appeals of proceedings after an adjudication of
guilt, including assessment of punishment, pronouncement of sentence, and granting of
community supervision are not foreclosed by article 42.12, section 5(b).
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
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2. whether appellant is indigent and entitled to appointed counsel and
preparation of the appellate record without payment.
The trial court shall cause the hearing to be transcribed. Should it be determined that
appellant desires to continue the appeal, then the trial court shall also take such measures
as may be necessary to assure appellant effective assistance of counsel, which measures
may include the appointment of counsel. If counsel is appointed, the name, address,
telephone number, and state bar number of said counsel shall be included in the order
appointing counsel. Finally, the trial court shall execute findings of fact, conclusions of law,
and such orders as the court may enter regarding the aforementioned issues, and cause
its findings and conclusions to be included in a supplemental clerk's record. A
supplemental record of the hearing shall also be included in the appellate record. Finally,
the trial court shall file the supplemental clerk's record and the supplemental reporter's
record with the Clerk of this Court by Monday, June 9, 2003.
It is so ordered.
Per Curiam
Do not publish.
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Sammy Ray Escobar v. State
Combined Opinion