

                                                            NO.
07-10-0114-CR
 
                                                   IN
THE COURT OF APPEALS
 
                                       FOR
THE SEVENTH DISTRICT OF TEXAS
 
                                                                 AT
AMARILLO
 
                                                                      PANEL
B
 
                                                         SEPTEMBER
14, 2010
                                            ______________________________
 
                                                          WILLIE
GENE MILES,
 
                                                                                                            Appellant
 
                                                                             v.
 
                                                        THE
STATE OF TEXAS, 
 
                                                                                                            Appellee
 
_________________________________
 
                 FROM THE COUNTY COURT AT LAW NO. 8 OF TRAVIS COUNTY;
 
                NO.
C-1-CR-09-211566; HON. HUMBERTO BARRERA, PRESIDING
                                           _______________________________
                                                                              
                                                    On
Abatement and Remand
                                           _______________________________
 
Before
QUINN, C.J., and CAMPBELL and HANCOCK, JJ.




Willie Gene Miles, appellant, appeals a conviction
from the offense of driving while intoxicated and a sentence of 120 days in the
Travis County Jail and a fine of $2,000. 
Appellant timely perfected this appeal by filing a notice of appeal on
March 15, 2010.  The clerk’s record was
filed on March 16, 2010, and on July 6, 2010, the reporter notified the Court
that no reporter’s record was taken.  On
April 14, 2010, counsel for appellant notified the Court by letter that
appellant wished to dismiss his appeal. 
In response, the clerk’s office called and informed him on April 19,
2010, that a formal motion to dismiss with appellant’s signature was needed in
order for the Court to dismiss this appeal. 
No response was received.  By
letter dated July 14, 2010, counsel was informed again that the Court required
a formal motion signed by appellant in order to dismiss an appeal and he was
given until July 24, 2010, to file it. 
The letter stated that if the motion to dismiss was not received by that
date, appellant’s brief was due no later than August 13, 2010.  No motion or brief was filed by that date,
however.  On August 20, 2010, the court
sent a letter to counsel for appellant notifying him that the brief was overdue
and that it or a response was due on August 30, 2010.  To date, no response has been filed.
Consequently, we abate the appeal and
remand the cause to the County Court at Law No. 8 of Travis County (trial
court) for further proceedings.  Upon
remand, the trial court shall undertake those proceedings necessary to
determine the following:
1.           
whether
appellant is indigent; 
 
2.           
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); and,
 
4.         why appellant=s appointed counsel has not complied
with the previously established deadlines.
 
Should the trial court find that
appellant desires to pursue the appeal, is indigent, and has been denied effective
assistance of counsel, we direct it to appoint new counsel for appellant to
prosecute the appeal.  Any and all orders
issued as a result of its proceeding shall be included in a supplemental clerk=s record and filed with this court on or
before October 14, 2010.  Should additional time be needed to
perform these tasks, the trial court may request same on or before October 14,
2010.
It is so ordered.
                                                                                    Per
Curiam
Do
not publish. 
 
 

