                                    NO. 07-05-0061-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                       JUNE 21, 2005

                           ______________________________


                             EDMOND WAITES, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

                FROM THE 27TH DISTRICT COURT OF BELL COUNTY;

                 NO. 52925; HONORABLE MARTHA J. TRUDO, JUDGE

                          _______________________________

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


                                 MEMORANDUM OPINION


       Edmond Waites appeals his conviction for murder. The clerk’s record was filed on

December 22, 2004, and the reporter’s record was filed on February 22, 2005. Appellant’s

brief was originally due on March 24, 2005. Appellant has requested and been granted two

extensions of time to file his brief, making the brief due May 25, 2005. On June 7, 2005,

this court notified counsel for appellant that neither the brief nor a request for an additional
extension of time to file appellant’s brief had been filed. Counsel for appellant was also

admonished that if appellant’s brief was not filed by June 17, 2005, the appeal would be

abated to the trial court. Tex. R. App. P. 38.8(b)(2). That date is past, and appellant has

neither filed a brief nor submitted a further motion for extension.


       Accordingly, we abate the appeal and remand the cause to the 27th District Court

of Bell 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 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 indigent defendant is entitled to the
              effective assistance of counsel on the first appeal as a matter of right
              and that counsel must be available to assist in preparing and
              submitting an appellate brief).


Tex. R. App. P. 38.8(b)(2).


       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 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, fax 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

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supplemental clerk’s record containing the findings of fact and conclusions of law and (2)

a supplemental reporter’s record transcribing the evidence and argument presented at the

hearing.   Tex. R. App. P. 38.8(b)(3).      Additionally, the trial court shall cause the

supplemental clerk’s record and the supplemental reporter’s record 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 additional time before July 22, 2005.




                                          Per Curiam


Do not publish.




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