                                   NO. 07-05-0059-CR
                                   NO. 07-05-0064-CR
                                   NO. 07-05-0065-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   JUNE 22, 2005
                          ______________________________

                           MICHAEL EDWARD KILPATRICK,

                                                               Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

               FROM THE 22nd DISTRICT COURT OF HAYS COUNTY;

      NOS. CR-04-570, CR-03-711, CR-04-528; HON. RON CARR, PRESIDING
                     _______________________________

                            ABATEMENT AND REMAND
                       __________________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

      Michael Edward Kilpatrick (appellant) appeals his convictions for criminal solicitation

of a minor, attempted sexual performance by a child, and attempted aggravated sexual

assault. The clerk’s records were filed on January 13, 2005, and the reporter’s records

were filed on February 22 and 28, 2005. Thus, appellant’s brief in each case was due

March 30, 2005. That date passed without appellant filing briefs, however. So, on April 11,
2005, this court notified appellant that neither the briefs nor an extension of time to file

briefs had been received by the court. In response, counsel for appellant filed a motion for

extension of time to file the briefs, which motion was granted to May 31, 2005. No briefs

or extension motion was filed by counsel before the due date. On June 9, 2005, counsel

for appellant was again notified that neither the briefs nor an extension of time to file the

briefs had been filed. Counsel was also admonished that if he did not respond to the

court’s letter by June 20, 2005, the appeals would be abated to the trial court. No response

or brief has been received by the court.

       Consequently, we abate these appeals and remand the causes to the 22nd District

Court of Hays 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 appeals;

       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 appellate briefs. 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 these appeals, is indigent, has appointed counsel, and has been denied effective

assistance of counsel, or has no counsel, then we further direct it to appoint new counsel

to assist in the prosecution of the appeals. The name, address, phone number, telefax

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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 records in each case to be

filed with the clerk of this court on or before July 22, 2005. Should additional time be

needed to perform these tasks, the trial court may request same on or before July 22,

2005.

        It is so ordered.



                                                  Per Curiam

Do not publish.




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