                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-14-00025-CR


                         STEVE BALLESTEROS, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 140th District Court
                                  Lubbock County, Texas
            Trial Court No. 2012-434,714, Honorable Jim Bob Darnell, Presiding

                                    August 4, 2014

                          ABATEMENT AND REMAND
                 Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Steve Ballesteros, appellant, appeals his conviction for murder. Appellant timely

perfected his appeal. The clerk’s record was filed on March 18, 2014, while the

reporter’s record was filed on May 8, 2014.       On May 23, 2014, appellant filed an

unopposed motion for extension of time to file the appellant’s brief. In the motion,

counsel explained that this court had received a “nine-volume record on appeal” and

that due to his “current case load” he was unable to file his brief by June 7, 2014.

Furthermore, counsel requested that he be allowed to file his brief on July 7, 2014,
which request was granted. On July 7, 2014, appellant’s counsel filed a second request

to extend the time to file the brief because appellant is “incarcerated and unable to pay

for the costs of the Record on Appeal, for that reason undersigned counsel has been

unable to complete Appellant’s Initial Brief.” He, further, requested that he be given

sixty days to file the brief. In a letter dated July 7, 2014, this court denied the request

after pointing out that the record had been received by the appellate court. The record

having been developed and received by this court, there was no need to delay briefing

on the grounds that appellant was purportedly indigent and unable to pay for the record.

On July 14, 2014, appellant’s counsel was notified by letter that the brief was overdue

and that unless appellant’s brief was filed on or before July 24, 2014, the appeal would

be abated.    On July 17, appellant’s attorney filed a motion for this court to reconsider

its denial of his request for an extension and to find appellant indigent. The court

denied the request. The brief is outstanding and none of the grounds proffered by

counsel warrant an extension of the deadline.

       Accordingly, we abate this appeal and remand the cause to the 140th District

Court of Lubbock County (trial court) for further proceedings. Upon remand, the trial

court shall determine the following:

       1. whether appellant desires to prosecute the appeal;

       2. whether appellant is indigent;

       3. whether appellant has been denied the effective assistance of counsel
          due to counsel’s failure to file a timely appellate brief. See Ex parte
          Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005) (holding "a
          reasonably competent attorney--regardless of whether he is retained or
          appointed--must seek to advance his client's best defense in a
          reasonably competent manner"); and

       4. why a timely appellate brief has not been filed on behalf of appellant.


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      The trial court is also directed to enter such orders necessary to address the

aforementioned questions. So too shall it include its findings on those matters in a

supplemental record and cause that record to be filed with this court by September 3,

2014. If it is determined that appellant is indigent and has been denied the effective

assistance of counsel, the trial court may appoint him new counsel; the name, address,

and phone number of any new counsel appointed shall be included in the

aforementioned findings. Should further time be needed to perform these tasks, then

same must be requested before September 3, 2014.

      It is so ordered.

                                                           Per Curiam

Do not publish.




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