IN THE

TENTH COURT OF APPEALS

No. 10-08-00412-CR

James Monroe Lang,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 05-06031-CRF-85

            Appellant James Monroe Lang’s counsel has filed a motion to withdraw combined with a motion for appointment of counsel.  Counsel explains that he seeks withdrawal because he has not been paid for his services, and he requests that counsel be appointed to represent Lang.  We will deny the motion because: (1) it does not comply with the requirements of the appellate rules; and (2) this Court does not have authority to appoint counsel.  Instead, we will abate this appeal to the trial court for a hearing to determine whether counsel should be permitted to withdraw and whether other counsel should be appointed.

            Counsel’s motion to withdraw does not comply with the requirements of Rule of Appellate Procedure 6.5.  See Tex. R. App. P. 6.5.  Specifically, counsel does not state in the motion that he provided a copy of the motion to Lang or notified him in writing of his right to object to the motion.  Id. 6.5(a)(3), (4).  Accordingly, the motion to withdraw is denied.

            Counsel contends that Lang is indigent and entitled to court-appointed counsel.  According, to the clerk’s record, Lang had court-appointed trial counsel.  However, his indigent status at trial does not automatically establish indigence for appeal.  See Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim. App. 2004) (“The indigency determination is made on a case-by-case basis as of the time the issue is raised and not as of some prior or future time.”).  Therefore, if the trial court permits counsel to withdraw, then the court must determine whether Lang is indigent and thus entitled to court-appointed counsel.[1]  See Tex. Code Crim. Proc. Ann. art. 1.051(d)(1) (Vernon Supp. 2008); Turner v. State, 71 S.W.3d 928, 929 (Tex. App.—Waco 2002, order, no pet.).

            Accordingly, we abate the appeal to the trial court for a hearing to determine: (1) whether Lang’s counsel should be permitted to withdraw; and (2) whether Lang is indigent.  If Lang is found indigent, then the court should: (1) appoint counsel to represent him unless he waives the right to counsel; and (2) direct the court reporter to furnish the reporter’s record without charge.

The trial court shall conduct the hearing within 30 days after the date of this order.  The trial court clerk shall file a supplemental clerk’s record containing any orders or findings made by the court within 45 days after the date of this order.

If Lang is found indigent, the court reporter shall prepare the entire reporter’s record for this appeal (including the abatement hearing) without charge and file the reporter’s record within 60 days after the date of this order.  If Lang is not found indigent, the court reporter shall file a limited reporter’s record from the abatement hearing within 45 days after the date of the order.

PER CURIAM

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Appeal abated

Order issued and filed March 4, 2009

Do not publish

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