
BRIAN MILLSAP V. SHOW TRUCKS USA, INC.






NO. 07-08-0459-CR



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL B



FEBRUARY 19, 2009

______________________________



MITCHELL E. WACHHOLTZ,



Appellant



v.



THE STATE OF TEXAS, 



Appellee



_________________________________



FROM THE 364th DISTRICT COURT OF LUBBOCK COUNTY;



NO. 2007-416930; HON. BRADLEY S. UNDERWOOD, PRESIDING

_______________________________



ON ABATEMENT AND REMAND

_______________________________



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

 Mitchell E. Wachholtz (appellant) appeals from his conviction for murder.  He filed his notice of appeal on November 14, 2008.  The clerk’s record was filed on December 22, 2008, the reporter’s record on December 29, 2008.  Appellant’s brief was due on January 28, 2009.  Neither a brief nor a motion for extension was filed by that date with the court.  On February 4, 2009, the court sent a letter to appellant notifying him that the brief was overdue and that the brief or response was due on February 17, 2009.   To date, no brief or extension motion has been filed.

Consequently, we abate the appeal and remand the cause to the 364th District Court (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:


whether appellant is indigent; 





whether appellant desires to prosecute the appeal;




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 the appeal, is indigent, and has been denied effective assistance of counsel, we further direct it 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, 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 record to be filed with the clerk of this court on or before March 23, 2009.  Should additional time be needed to perform these tasks, the trial court may request same on or before March 23, 2009.

It is so ordered.



Per Curiam

Do not publish.

