                                   NO. 07-03-0013-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                   APRIL 29, 2003
                          ______________________________

                                  OSCAR BALDERAS,

                                                        Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                Appellee
                        _________________________________

               FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

                NO. A13518-9909; HON. JACK R. MILLER, PRESIDING
                       _______________________________

                            ABATEMENT AND REMAND
                       __________________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

       Oscar Balderas (appellant) appeals his conviction for driving while intoxicated. The

clerk’s record was filed on January 30, 2003, and the reporter’s record was filed on March

7, 2003. Thus, appellant’s brief was due on April 7, 2003. However, one was not filed on

that date. By letter, this Court notified appellant of the expired deadline and directed him

to respond to our letter by Monday, April 28, 2003, or the appeal would be abated to the
trial court pursuant to TEX . R. APP . P. 38.8. That date has lapsed, and appellant still has

yet to file a brief.

        Consequently, we abate this appeal and remand the cause to the 64th District Court

of Hale 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;

        2.      whether appellant is indigent and entitled to appointed counsel; 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 this appeal, is indigent, and has been denied effective assistance of counsel, then

we further direct the court 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 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


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record to be filed with the clerk of this court on or before May 28, 2003. Should additional

time be needed to perform these tasks, the trial court may request same on or before May

28, 2003.

       It is so ordered.

                                                 Per Curiam

Do not publish.




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