
NO. 07-02-0142-CR

NO. 07-02-0143-CR

NO. 07-02-0144-CR



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL E



OCTOBER 7, 2002



______________________________





FABIAN JAMES TANKESLY, APPELLANT



V.



THE STATE OF TEXAS, APPELLEE



_________________________________



FROM THE 47TH
 DISTRICT COURT OF POTTER COUNTY;



NO. 41,975-A, 41,941-A, & 41,926-A ; HONORABLE DAVID GLEASON, JUDGE



_______________________________



Before QUINN and REAVIS, JJ. and BOYD, S.J.
(footnote: -6)
ABATEMENT AND REMAND

Pursuant to guilty pleas, on April 11, 2001, appellant Fabian James Tankesly was convicted of theft over $1,500 in cause number 41,975-A, securing execution of documents by deception over $20,000 and under $100,000 in cause number 41,941-A, and unauthorized use of a motor vehicle in cause number 41,926-A, all state jail felonies, and punishment was assessed at two years confinement and a $100 fine, suspended for three years community supervision.  Upon the State’s amended motion, on March 7, 2002, community supervision was revoked for violations of three of the conditions thereof, and the original punishment was imposed.  

Proceeding 
in forma pauperis
, appellant timely filed notices of appeal.  The appellate record was filed on May 6, 2002.  After two motions for extensions of time in which to file a brief were granted extending the deadline to August 5, 2002, a third request was granted to September 4, 2002, with the admonition that no additional extensions would be granted absent extreme and unusual circumstances.  A fourth motion for extension of time was filed explaining that additional time was necessary to diligently research the record and pertinent case law to prepare a proper brief, appellate counsel attended to family illness, and matters pending in the District Court still needed to be addressed.  The fourth request was granted extending the deadline to October 1, 2002, with the same admonishment previously given.  On October 1, 2002, appellant filed a fifth motion for extension of time citing the same reasons as in the fourth request. 

Appellant’s fifth motion for extension of time in which to file a brief is hereby denied and we now abate the appeal and remand the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3).  
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;


whether appellant is indigent and entitled to new appointed counsel; and	




3. 	whether appellant has been denied effective assistance of counsel given appellate counsel’s failure to file a brief.





The trial court shall cause the hearing to be transcribed.  Should it be determined that appellant desires to continue the appeal and is indigent, then the trial court shall also take such measures as may be necessary to assure appellant effective assistance of counsel, which measures may include the appointment of new counsel.  If new counsel is appointed, the name, address, telephone number, and state bar number of said counsel shall be included in the order appointing new counsel.  Finally, the trial court shall execute findings of fact, conclusions of law, and such orders as the court may enter regarding the aforementioned issues, and cause its findings and conclusions to be included in a supplemental clerk's record.  A supplemental record of the hearing shall also be included in the appellate record.  Finally, the trial court shall file the supplemental clerk's record and the supplemental reporter's record with the Clerk of this Court by Thursday, November 21, 2002.

It is so ordered.

Per Curiam

Do not publish.
  

FOOTNOTES
-6:John T.  Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.


