TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00646-CR

Joseph Urtado, Appellant v. The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT NO. D-1-DC-09-904068, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

MEMORANDUM OPINION

PER CURIAM Joseph Urtado appeals from his conviction for aggravated assault. The clerk’s record, which was due to be filed on December 21, 2009, has not been filed. Urtado’s retained counsel has filed a motion seeking to withdraw as attorney of record. The motion further states that Urtado is indigent and requires appointed counsel at this time. It appears that no request for a free record has been filed and no finding of indigency has been made by the trial court. See Tex. R. App. P. 20.2.

To avoid further delays and protect the rights of the parties, the appeal is abated and the trial court is instructed to determine, following a hearing if necessary, whether Urtado is presently indigent. If the court finds that Urtado is indigent, it shall order the preparation of the record at no cost to Urtado, and take all necessary steps to assure that Urtado is effectively represented by counsel, including appointing new counsel for the appeal if necessary. Unless and until new counsel is appointed, Jodi Callaway Cole remains counsel of record.1 Copies of all findings, conclusions, and orders, as well as a transcription of the reporter’s notes if a hearing is held, shall be tendered for filing in this Court no later than February 8, 2010.

Before Chief Justice Jones, Justices Waldrop and Henson Filed: January 8, 2010 Do Not Publish

At this time, we take no action on counsel’s motion to withdraw.