NO. 07-06-0352-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 18, 2007
______________________________
ROBERTO RODRIGUEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 251st DISTRICT COURT OF RANDALL COUNTY;
NO. 15,828-C; HON. PATRICK A. PIRTLE, PRESIDING
_______________________________
ABATEMENT AND REMAND
__________________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Roberto Rodriguez (appellant) appeals his criminal conviction. Per an extension of
the deadline previously granted him, his appellate brief was due by December 27, 2006.
Yet, it has not been received to date. This court informed appellant of this circumstance
by letter dated January 4, 2007, and told him that unless a brief or response to our letter
was received by the Court “on or before Tuesday, January 16, 2007, the appeal will be
abated to the trial court.” January 16th passed without appellant filing either a brief or
response to our January 4 th letter.
Consequently, we abate the appeal and remand the cause to the 251st District
Court of Randall 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 is indigent;
2. 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 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
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 February 20, 2007. Should
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additional time be needed to perform these tasks, the trial court may request same on or
before February 20, 2007.
It is so ordered.
Per Curiam
Do not publish.
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Roberto Rodriguez v. State
Combined Opinion