                                          NO. 07-02-0308-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL E

                                     FEBRUARY 25, 2003
                               ______________________________

                                      GERALD LOYD WRIGHT,

                                                                   Appellant

                                                     v.

                                      THE STATE OF TEXAS,

                                                    Appellee
                            _________________________________

               FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                     NO. 44,521-C; HON. JOHN T. FORBIS, PRESIDING
                           _______________________________

                                   ABATEMENT AND REMAND

                           __________________________________

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

        Gerald Loyd Wright (appellant) appeals his conviction for possession of a controlled

substance with intent to deliver. The clerk’s record was filed on September 10, 2002. The

reporter’s record was filed on November 20, 2002. Thus, appellant’s brief was due on

December 20, 2002. However, one was not filed on that date. By letter dated December



        *
        John T. Boyd, Chief Justice (Ret.), Seventh Cou rt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2003 ).
30, 2002, we notified appellant’s counsel of the expired deadline and directed him to

respond to our notification of same by Friday, January 10, 2003, or the appeal would be

abated to the trial court pursuant to TEX . R. APP. P. 38.8. On January 9, 2003, we received

appellant’s motion for extension of time to file brief to February 10, 2003, and also

appellant’s motion for substitution of counsel, which were both granted. February 10,

2003, passed without appellant submitting his brief.

       Consequently, we abate this appeal and remand the cause to the 251st 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;

       2.     whether appellant is indigent; and,

       3.     whether appellant has been denied the effective assistance of
              counsel due to counsel’s failure to timely file a 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 was denied effective assistance of counsel, then we

further direct the court 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 who will represent appellant on appeal must also be included in the court’s findings


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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 March 20, 2003. Should

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

before March 20, 2003.

      It is so ordered.

                                                Per Curiam

Do not publish.




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