                                  NO. 07-03-0325-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                NOVEMBER 5, 2003
                         ______________________________

                           CHRISTOPHER EVAN HEFNER,

                                                       Appellant

                                            v.

                               THE STATE OF TEXAS,

                                               Appellee
                       _________________________________

          FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

                   NO. 8938; HON. WILLIAM D. SMITH, PRESIDING
                        _______________________________

                           ABATEMENT AND REMAND
                      __________________________________

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

      Christopher Evan Hefner (appellant) appeals his conviction for enticing a child. The

court received the complete appellate record by August 14, 2003. Thus, appellant’s brief

was due on September 14, 2003. However, one was not filed on that date. Instead,

counsel for appellant moved to extend the deadline, and the latter was extended to

October 13, 2003. Rather than file a brief on that date, counsel for appellant again moved

for an extension, and we then extended the briefing deadline to November 3, 2003. Before
us is a third motion requesting an additional extension. Furthermore, the reason proffered

to justify it is akin to those used to obtain the prior extensions; that is, counsel for appellant

represents that he has not had the time to research or complete the research “on the legal

issue in this case.”

       Consequently, we abate this appeal and remand the cause to the 84th District Court

of Hutchinson 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;

       3.      whether counsel for appellant has abandoned the appeal;

       4.      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,

       5.      whether the appellant should be appointed new counsel on
               appeal.

       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, or

if it is determined that counsel has abandoned the appeal, then we further direct the court



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to appoint new counsel to represent appellant in 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 December 5, 2003. Should

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

before December 5, 2003.

      It is so ordered.

                                                Per Curiam

Do not publish.




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