FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 25, 2006 ______________________________
DOUGLAS D. COX,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 140th DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2005-409,333; HON. JIM BOB DARNELL, PRESIDING _______________________________
ABATEMENT AND REMAND __________________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Douglas D. Cox (appellant) appeals his conviction for theft from a person 65 or over. After granting appellant a prior extension, his brief was due no later than April 17, 2006 (a date requested by appellant's counsel). No brief has been received by this court. Nor has appellant explained the delay.
Consequently, we abate the appeal and remand the cause to the 140th District Court of Lubbock 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; and,
2. whether appellant has been denied the effective assistance of counsel due to appellate counsel's failure to timely file appellate 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 the appeal, is indigent, and has been denied effective assistance of counsel, we further direct it 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, if any, 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 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 May 25, 2006. Should additional time be needed to perform these tasks, the trial court may request same on or before May 25, 2006.
It is so ordered.
Per Curiam
Do not publish.
cused was present at the search, 2) the contraband was plainly visible by those present, 3) the drugs were near the defendant, 4) the defendant was under the influence of the substance found, 5) the defendant possessed other contraband or drug paraphernalia when arrested, 6) the defendant made any incriminating statements, 7) the defendant attempted to flee, 8) the defendant made furtive gestures, 9) the contraband emitted a recognizable odor at the time, 10) other contraband or drug paraphernalia was present, 11) the defendant had the right to exclusive or joint possession of the locale at which the drugs were found, 12) the place where the drugs were found was enclosed, 13) the accused attempted to conceal the contraband, and 14) the accused was familiar with the type of contraband. Park v. State, 8 S.W.3d 351, 353 (Tex. App.-Amarillo 1999, no pet.). Incidentally, the number of factors established is not as important as the degree to which they tend to affirmatively link the defendant to the contraband. Id. In other words, if evidence satisfying less than all the aforementioned indicia is produced, conviction may still be upheld if the evidence establishes, beyond reasonable doubt, appellant's knowing link to the drugs. Id.
In reviewing the record, we find evidence illustrating that appellant was present in the residence during the search. She also told one of the officers that she "maintained the residence." Moreover, items of "mail and articles [were] addressed to her [at] the residence." From this, an officer deduced that appellant "was the one in control during [execution of] the search warrant itself." Additionally, marijuana was found on the coffee table in plain view in the living room where appellant was seated, and, according to one officer at the scene, the marijuana emitted a recognizable odor. Also in the living room and atop the television were nine syringes, a spoon with a tan residue, and a syringe containing methamphetamine. Upon further investigation, the officers found drug paraphernalia such as syringes, cotton swabs, and a drug ledger in appellant's bedroom. More paraphernalia was discovered in a large silver metal box located in another room of the residence. This evidence sufficiently linked appellant to the controlled substances located in her home. And, the trial court did not err in concluding that she possessed the methamphetamine and marijuana found therein. (1)
Accordingly, we overrule appellant's point of error and affirm the judgment entered below.
Brian Quinn
Justice
Do not publish.
1.