
NO. 07-03-0415-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 20, 2004

______________________________

IN THE INTEREST OF S. M. J., J. E. J.
AND J. P. J., CHILDREN
________________________________

FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

NO. 46,820-C; HONORABLE PATRICK PIRTLE, JUDGE
_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
	Appellant, Michael S. James, joined by appellee Kimberly Dawn James, filed a
Motion to Dismiss Appeal on December 15, 2004.
	No decision of this Court having been delivered to date, we grant the motion. 
Accordingly, the appeal is dismissed.  No motion for rehearing will be entertained and our
mandate will issue forthwith.  Tex. R. App. P. 42.1.   All costs herein having been paid, no
order pertaining to costs is made.  

							James T. Campbell
						    	        Justice

n December 5, 2005, and
the reporter's record was filed on December 12, 2005.  Thus, appellant's brief was due to
be filed no later than January 11, 2006.  On January 11, 2006, counsel filed a motion for
extension of time to file appellant's brief, which was granted to February 10, 2006.  On
February 13, 2006, counsel for appellant filed a second extension request, which was
granted to March 6, 2006, with the admonition that no further extensions would be granted
and failure to comply with the deadline would result in the appeal being abated and the
cause remanded to the trial court.  No brief was filed by that date.  Instead, on March 7,
2006, counsel for appellant filed a third motion for extension of time to file the brief,
requesting an additional 30 days.
	Consequently, we abate the appeal and remand the cause to the 181st District Court
of Potter 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; and,

	2.  	whether appellant has been denied the effective assistance of counsel
due to appellate counsel's failure to timely file 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 the appeal, is indigent, and has been denied effective assistance of counsel, we
further direct it to appoint new counsel to assist in the prosecution of 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 April 10, 2006.  Should additional
time be needed to perform these tasks, the trial court may request same on or before April
10, 2006.
	It is so ordered.
							Per Curiam

Do not publish.
