NO. 07-02-0308-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 25, 2003
______________________________
GERALD LOYD WRIGHT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;
NO. 44,521-C; HON. JOHN T. FORBIS, PRESIDING
_______________________________
ABATEMENT AND REMAND
__________________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J.*
Gerald Loyd Wright (appellant) appeals his conviction for possession of a controlled
substance with intent to deliver. The clerk’s record was filed on September 10, 2002. The
reporter’s record was filed on November 20, 2002. Thus, appellant’s brief was due on
December 20, 2002. However, one was not filed on that date. By letter dated December
*
John T. Boyd, Chief Justice (Ret.), Seventh Cou rt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2003 ).
30, 2002, we notified appellant’s counsel of the expired deadline and directed him to
respond to our notification of same by Friday, January 10, 2003, or the appeal would be
abated to the trial court pursuant to TEX . R. APP. P. 38.8. On January 9, 2003, we received
appellant’s motion for extension of time to file brief to February 10, 2003, and also
appellant’s motion for substitution of counsel, which were both granted. February 10,
2003, passed without appellant submitting his brief.
Consequently, we abate this appeal and remand the cause to the 251st District
Court of Potter 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;
2. whether appellant is indigent; and,
3. whether appellant has been denied the effective assistance of
counsel due to counsel’s failure to timely file a brief. See Evitts v.
Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 834-35, 83 L.Ed.2d 821,
828 (1985) (holding that an indigent defendant is entitled to the
effective assistance of counsel on the first appeal as of right and that
counsel must be available to assist in preparing and submitting an
appellate brief).
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 this appeal, is indigent, and was denied effective assistance of counsel, then we
further direct the court to appoint new counsel to assist in the prosecution of the appeal.
The name, address, phone number, telefax number, and state bar number of the new
counsel who will represent appellant on appeal must also be included in the court’s findings
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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 March 20, 2003. Should
additional time be needed to perform these tasks, the trial court may request same on or
before March 20, 2003.
It is so ordered.
Per Curiam
Do not publish.
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