Erskine L.T. Allen, Jr. v. State ( 2006 )

NO. 07-06-0211-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
SEPTEMBER 5, 2006
______________________________
ERSKINE L.T. ALLEN, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 22, 580; HON. CECIL PURYEAR, PRESIDING
_______________________________
Abatement and Remand
_______________________________
Before QUINN, C.J., and, REAVIS and CAMPBELL, JJ.
Erskine L.T. Allen, Jr. (appellant), acting pro se, perfected an appeal from the trial
court’s denial of his motion for DNA testing. In perfecting the appeal, he also requested
that counsel be appointed to represent him. None was appointed. Yet, at the time
appellant moved for testing, he was entitled to appointed counsel upon proof of indigency.
See Spruce v. State, 06-05-00077-CR, 2005 Tex. App. LEXIS 6548 (Tex. App.–Texarkana
August 17, 2005) (explaining the status of the law); Gray v. State, 69 S.W.3d 835, 837
(Tex. App.--Waco 2002, no pet.) (requiring appointment).1 Consequently, we abate the
appeal and remand the cause to the 137th District Court of Lubbock 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.
We further direct the trial court to issue findings of fact and conclusions of law
addressing the foregoing subjects. Should the trial court find that appellant desires to
pursue his appeal, is indigent, and has no counsel, then we further direct it to appoint
counsel to assist in the prosecution of the appeal. The name, address, phone number,
telefax number, and state bar number of the new counsel, if any, who will represent
appellant on appeal must also be included in the court’s findings of fact and conclusions
of law. Furthermore, the trial court shall also cause to be developed 1) a supplemental
clerk’s record containing the findings of fact and conclusions of law and 2) a reporter’s
record transcribing the evidence and argument presented at the aforementioned hearing.
Additionally, the trial court shall cause the supplemental clerk’s record to be filed with the
clerk of this court on or before October 2, 2006. Should additional time be needed to
perform these tasks, the trial court may request same on or before October 2, 2006.
It is so ordered.
Per Curiam
Do not publish.
1
Sinc e then, the law ha s ch ang ed a nd o ne re que sting a ppointed c oun sel m ust c lear other h urdles.
Those hurdles are explained in art. 64.01(c) of the Texas Code of Criminal Procedure and Spruce v.
State , 06-0 5-00 077 -CR , 2005 T ex. A pp. L EX IS 6548 (T ex. App.–T exarka na Aug ust 17, 2005).