                                  NO. 07-06-0434-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                     JULY 19, 2007

                         ______________________________


                            GABRIEL PEREZ, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

           FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2005-408866; HONORABLE JIM BOB DARNELL, JUDGE

                        _______________________________

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


                             ABATEMENT AND REMAND


      Following an open plea of guilty, Appellant, Gabriel Perez was convicted of

possession of a controlled substance with intent to deliver and sentenced to sixty years

confinement. Maxwell C. Peck, III was appointed on October 12, 2006, to represent

Appellant in prosecuting this appeal, and the notice of appeal was timely filed on October
17, 2006. The clerk’s record was filed on January 26, 2007, and a supplemental clerk’s

record was filed on April 13, 2007. The reporter’s record consisting of the master index,

plea hearing, punishment and sentencing hearing, and an exhibit volume were filed on

February 5, 2007. Appellant’s brief was initially due on March 7, 2007.


      On March 14, 2007, counsel filed a motion for extension of time in which to file

Appellant’s brief indicating trial preparation in a capital murder case left him “unable to

prepare and adequately finalize [sic] brief.” The motion was granted to April 6, 2007.


      On April 9, 2007, counsel filed a second motion for extension of time in which to file

Appellant’s brief. As good cause, counsel explained that upon reviewing the clerk’s and

reporter’s record, they were incomplete and required supplementation. Counsel included

copies of letters to the Lubbock County District Clerk requesting inclusion of pretrial

motions and to the court reporter requesting preparation of two pretrial hearings. The

motion was granted to May 10, 2007.


      Meanwhile, on May 1, 2007, a supplemental reporter’s record was filed consisting

of one and one-half pages of discussion between the trial court, prosecutor, and trial

counsel on when to set a hearing date on pretrial motions.


      A third motion for extension of time was filed on May 15, 2007, indicating that the

court reporter had not yet prepared the supplemental reporter’s record as requested on

April 9, 2007. This Court granted the motion to May 23, 2007. A supplemental reporter’s


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record of a motion to suppress hearing was filed on May 29, 2007. The record consists

of eighty-nine pages.


       On June 14, 2007, this Court granted a fourth motion for extension of time based

on counsel’s assertion that he would be out of town on vacation from June 7, 2007,

through June 25, 2007, and his explanation that he would be unable to adequately prepare

and finalize the brief. The motion was granted with the following admonition:


       [n]o further extensions will be granted. If Appellant’s brief is not filed by
       July 11, 2007, this matter will be abated and remanded to the trial court to
       determine whether counsel should be removed and substitute counsel
       appointed (italicized emphasis added).


       Pending before this Court is a fifth motion filed on July 16, 2007, together with

Appellant’s brief by which counsel requests that this Court consider the brief timely filed

when received for the following reason:


       [t]he brief was not completed until July 13, 2007; Despite Appellant’s
       counsel’s diligent effort to complete Appellant’s Brief prior to July 11, 2007,
       he was unable to do so.


By the brief, counsel raises two issues, to-wit: (1) whether the trial court erred in denying

Appellant’s motion to suppress his arrest and search as violative of the 4th, 9th, and 14th

amendments of the United States Constitution and Article 1, §§ 9, 10, and 19 of the

Constitution of the State of Texas, and (2) whether the trial court erred in denying

Appellant’s motion to suppress all statements made by him where such statements were


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made as a result of an illegal arrest. Counsel then presents argument in three pages and

five lines of a fourth page.


       By order of the Court, Appellant’s Fifth Motion to File Brief When Received is denied

and the brief is not accepted for filing. We now abate this appeal and remand the cause

to the trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas

Rules of Appellate Procedure. Upon remand, the trial court shall utilize whatever means

necessary to determine the following:


       1.     whether Appellant desires to prosecute the appeal;
       2.     whether Appellant is indigent;
       3.     whether counsel for Appellant has either effectively abandoned the
              appeal or provided ineffective assistance of counsel given his failure
              to timely file the brief after four extensions of time; and
       4.     whether Appellant has been denied effective assistance of counsel
              given counsel’s untimely filed brief.

Should it be determined that Appellant does want to continue the appeal and the court

determines that present counsel should be replaced, the name, address, telephone

number, and state bar number of the newly-appointed counsel shall be provided to the

Clerk of this Court. Finally, the trial court shall execute findings of fact, conclusions of law,

and any necessary orders it may enter regarding the aforementioned issues and cause its

findings, conclusions, and orders, if any, to be included in a supplemental clerk's record.

A supplemental record of the hearing, if any, shall also be included in the appellate record.




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Finally, the trial court shall file the supplemental clerk's record and the supplemental

reporter's record with the Clerk of this Court by August 10, 2007 .


      It is so ordered.

                                                Per Curiam

Do not publish.




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