                                   NO. 07-02-0184-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   MAY 29, 2002
                         ________________________________

                                      ARIE SHALEV,

                                                         Appellant
                                             v.

                                 THE STATE OF TEXAS

                                                Appellee
                        _________________________________

    FROM THE COUNTY CRIMINAL COURT AT LAW #13 OF HARRIS COUNTY;

                  NO. 1058728; HON. MARK ATKINSON, PRESIDING
                        _______________________________

Before BOYD, QUINN, and REAVIS, JJ.

       Arie Shalev (appellant) appeals his conviction for driving while intoxicated. Both

the clerk’s and court reporter’s records were filed by April 1, 2002. Thus, appellant’s brief

was due on May 1, 2002. However, one was not filed on that date. By letter dated May

13, 2002, we notified appellant’s counsel, Mike Monks, of the expired deadline and

directed him to respond to our notification of same by Thursday, May 23, 2002, or the

appeal would be abated to the trial court pursuant to TEX . R. APP . P. 38.8. May 23, 2002

passed without any response by counsel to our notice, without counsel tendering a brief,

and without counsel filing a motion for extension of time to file a brief.
       Consequently, we abate this appeal and remand the cause to the County Criminal

Court at Law No. 13 of Harris 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,

       3.     whether appellant has been denied the effective assistance of counsel due

              to counsel’s failure to timely file a 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 was 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 June 28, 2002. Should additional

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

28, 2002.

       It is so ordered.

                                                  Per Curiam




Do not publish.




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