                                       NO. 07-02-0502-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                      JUNE 11, 2003
                             ______________________________

                                     DENZEL BUCHANAN,

                                                              Appellant

                                                  v.

                                    THE STATE OF TEXAS,

                                                  Appellee
                          _________________________________

             FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 2001-438,166; HON. JIM BOB DARNELL, PRESIDING
                         _______________________________

                               ABATEMENT AND REMAND
                          __________________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

       Denzel Buchanan (appellant) appeals his conviction for manufacture/delivery of

methamphetamine. The clerk’s record was filed on January 6, 2003, and the reporter’s

record was filed on February 26, 2003. Thus, appellant’s brief was due on March 28,

2003. However, one was not filed on that date. Counsel for appellant filed for an



       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t
Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
extension of time to file the brief on March 31, 2003, which extension was granted to April

28, 2003. However, the brief was not filed on that date. On April 29, 2003, counsel for

appellant filed a second extension motion to file a brief, which was granted to May 19,

2003. However, no appellant’s brief was received by that date. On May 30, 2003, a third

motion for extension of time to file appellant’s brief was filed, asking for an extension to

June 2, 2003, which was granted. Counsel for appellant was also admonished that no

further extensions would be granted absent extreme and unusual circumstances. That

date has lapsed, and appellant still has yet to file a brief.

       Consequently, we abate this appeal and remand the cause to the 140th District

Court of Lubbock 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 entitled to appointed counsel; and,

       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 this appeal, is indigent, 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


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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

record to be filed with the clerk of this court on or before July 11, 2003. Should additional

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

11, 2003.

       It is so ordered.

                                                  Per Curiam

Do not publish.




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