Weeks v. State

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459 S.W.2d 639 (1970)

Winford A. WEEKS, Appellant, v. The STATE of Texas, Appellee.

No. 43392.

Court of Criminal Appeals of Texas.

November 10, 1970.

No attorney on appeal for appellant.

Jim D. Vollers, State's Atty., Austin for the State.

OPINION

MORRISON, Judge.

The offense is aggravated assault on a police officer; the punishment, 2 years in jail.

During the pendency of this appeal in the trial court, the appellant filed a pauper's oath alleging that he was wholly destitute, asking for appointment of counsel, and a statement of facts without cost. After hearing at which appellant testified that he was a pauper, which testimony was not controverted by the State, the court refused to appoint counsel on appeal. There is in this record no transcription of the court reporter's notes and no appellate brief has been filed on behalf of the appellant.

The State has now filed in this Court a motion to abate the appeal. It appears that the same should be granted to permit proceedings to be conducted by the trial court under the provisions of Article 40.09, Vernon's Ann.C.C.P., as if this appeal had not been filed in this Court, which may include providing the appellant with effective aid of counsel on appeal. The trial court may conduct such proceedings as it deems necessary to determine whether appellant *640 is indigent and entitled to a record on appeal and to determine whether appellant's counsel at the trial, which was counsel of his choice, should be allowed to withdraw, or whether the appellant has attempted to use his right to counsel to delay the orderly administration of justice in this cause. See Williams v. State, Tex.Cr.App., 458 S.W.2d 932.

The appeal is abated.