NO. 07-02-0464-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 4, 2003
______________________________
PATRICIA LYNN KYLES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY;
NO. 86473; HON. CHARLES D. CARVER, PRESIDING
_______________________________
ABATEMENT AND REMAND
__________________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J.*
Patricia Lynn Kyles (appellant) appeals her conviction for misdemeanor theft. The
clerk’s record was filed on October 15, 2002. The reporter’s record was filed on December
12, 2002. Thus, appellant’s brief was due on January 13, 2003. However, one was not
filed on that date. By letter dated January 21, 2003, we notified appellant’s counsel,
*
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t
Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
Norman Desmarais, of the expired deadline and directed him to respond to our notification
of same by Friday, January 31, 2003, or the appeal would be abated to the trial court
pursuant to TEX . R. APP . P. 38.8. January 31, 2003, passed without appellant submitting
any response to our notice.
Consequently, we abate this appeal and remand the cause to the Criminal District
Court of Jefferson 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 of fact and conclusions of law. Furthermore, the trial court shall also cause to be
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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 5, 2003. Should additional
time be needed to perform these tasks, the trial court may request same on or before
March 5, 2003.
It is so ordered.
Per Curiam
Do not publish.
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