Sowell v. StateSowell v. State
- Reporters:
- ,
- Before:
- Odom
OPINION ON APPELLANT’S MOTION FOR REHEARING
ODOM, Judge.This is an appeal from an order revoking probаtion wherein appellant was convicted of the offense of burglary with intent to commit theft; the punishment, five years.
Appellant’s conviction was affirmed by this Court on January 9, 1974, in a per curiam opinion (No. 48,039). At the time appellant’s conviction was affirmed by this Cоurt no brief had been filed in the trial court in appellant’s behalf, the record was before us without a transcription of the court reporter’s notes, and no questions based on indigency had been raised. 1
On Jаnuary 28, 1974, appellant filed a “pro se” motion fоr leave to file a motion for rehearing, and а pauper’s oath. Therein appellant сontends that (1) he is indigent and has been so since the beginning *878 of his appeal, therefore not allowing him to afford an attorney to perfect his apрeal to this Court, and (2) that because of his financial condition, he could also not afford to send up the statement of facts. Appellant requests that this Court allow him time so that he may have an attornеy appointed for him to further perfect his aрpeal and that he may be allowed to file a pauper’s affidavit in order that he may send up а statement of facts to this Court.
The issue before this Court is: when the first indication of indigency is made after the rеcord is filed in this Court, will the case be abated for рurposes of determining an appellant’s indigency for purposes of appeal ? We answer this question under the facts in the case at bar in the affirmative.
In Steel v. State, 453 S.W.2d 486 (Tex. Cr.App.1970), this Court stated:
“When private counsel is engaged, no duty devolves upon the court to appoint cоunsel in criminal prosecution. However, retainеd counsel, even one who has not been fully cоmpensated for past services or comрensated for further service, cannot wait until a сritical stage of the proceedings is reaсhed and bow out without notice to the court and the accused and ‘frustrate forever accused’s right to protect his vital interests.’ ”
We conclude thаt the above rule is applicable in the instant case. The trial court should hold a hearing with referеnce to appellant’s indigency for purposes of appeal and, if indigency is shown, take suсh steps as are necessary to provide effective counsel, along with a free transcriрtion of the court reporter’s notes. See аlso Curry v. State, 488 S.W.2d 100 (Tex.Cr.App.1972); Richardson v. State, 495 S.W.2d 246 (Tex.Cr.App. 1973).
For the reasons stated, our prior оpinion is withdrawn, appellant’s motion for rehearing is granted, and the appeal is abated.
Notes
. It apipears that appellant was represented by retained counsel at that time.