NO. 07-12-0415-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 1, 2013
______________________________
JOSEPH TAYLOR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2011-431936; HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Pursuant to an open plea of guilty, Appellant, Joseph Taylor, was convicted of
third degree felony possession of marijuana. 1 Both the clerk's record and reporter's
record have been filed. Appellant's brief was due to be filed on December 31, 2012, but
has not been filed. By letter dated January 11, 2013, counsel for Appellant, Jesse
Mendez, was advised that the brief remained outstanding and was granted until January
1
TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(4) (W EST 2010).
22, 2013, in which to file the brief, noting that failure to comply might result in abatement
of the appeal and remand of the cause to the trial court for further proceedings without
further notice. Counsel has not responded to the notice nor communicated with the
Clerk of this Court regarding this appeal.
Consequently, we now abate this appeal and remand the cause to the trial court
for further proceedings. Upon remand, the trial court shall immediately determine why
counsel has failed to file Appellant=s brief and take such action as is necessary to
ensure that the brief is filed in accordance with this opinion.
Should counsel file Appellant's brief on or before, February 15, 2013, he is
directed to immediately notify the trial court, in writing, of the filing, whereupon the trial
court shall not be required to take further action. If, however, the brief is not filed by that
date, pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure, the
trial court is directed to conduct a hearing to determine the following:
1. whether Appellant still desires to prosecute the appeal;
2. whether Appellant remains indigent and is entitled to appointed counsel;
and
3. whether Appellant has been denied effective assistance of counsel and is
entitled to new appointed counsel.
See Guillory v. State, 557 S.W.2d 118, 121 (Tex.Crim.App. 1977). 2
2
The trial court has a duty under the Texas and federal Constitutions to provide an indigent defendant
with the effective assistance of counsel on appeal. Guillory, 557 S.W.2d at 120 (citing Douglas v.
California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)). Effective assistance cannot be afforded
without requiring that counsel file a brief on an appellant's behalf. Guillory, 557 S.W.2d at 121. The trial
judge has the authority to require appointed counsel to file a brief on behalf of an appellant. Id.
2
Should it be determined that Appellant does want to continue the appeal and the
trial court determines he is entitled to new appointed counsel, the name, address,
telephone number, and state bar number of the newly-appointed counsel shall be
provided to the Clerk of this Court. The trial court shall execute findings of fact and
conclusions of law, and shall cause its findings, conclusions, and any necessary orders
to be included in a supplemental clerk's record to be filed with the Clerk of this Court by
March 4, 2013. If new counsel is appointed, Appellant's brief shall be due thirty days
after the date of appointment; however, should Jesse Mendez be allowed to remain as
appointed counsel, he is hereby ordered to file Appellant's brief instanter.
It is so ordered.
Per Curiam
Do not publish.
3