NO. 07-07-0265-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JANUARY 31, 2008
______________________________
JUSTIN CURTIS OEHLERT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 251st DISTRICT COURT OF RANDALL COUNTY;
NO. 15,547-C; HON. ANA ESTEVEZ, PRESIDING
_______________________________
ON ABATEMENT AND REMAND
_______________________________
Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1
Justin Curtis Oehlert (appellant) appeals from his conviction for aggravated robbery.
He filed his notice of appeal on July 6, 2007. The clerk’s record was filed on October 1,
2007, and the reporter’s record on November 19, 2007. Therefore, appellant’s brief was
due on December 19, 2007. On January 2, 2008, a letter was sent to appellant’s attorney
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John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent. Tex. Gov’t Code
Ann. §75.002(a)(1) (Vernon Supp. 2007).
notifying him the brief was overdue and that the brief or response was due January 14,
2008. In response, appellant’s counsel filed a motion for extension of time to file a brief,
which was granted to January 18, 2008. To date, no brief or extension motion has been
filed in this Court.
Consequently, we abate the appeal and remand the cause to the 251st District Court
(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 is indigent;
2. whether appellant desires to prosecute the appeal; and
3. whether appellant has been denied the effective assistance of
counsel due to appellate counsel’s failure to timely file an 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
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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 3, 2008. Should additional
time be needed to perform these tasks, the trial court may request same on or before
March 3, 2008.
It is so ordered.
Per Curiam
Do not publish.
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