                                  NO. 07-08-0307-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                 JANUARY 6, 2009
                         ______________________________

                                AARON JAMEL LEWIS,

                                                             Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                             Appellee

                       _________________________________

             FROM THE 181st DISTRICT COURT OF POTTER COUNTY;

                 NO. 50,322-B; HON. JOHN B. BOARD, PRESIDING
                       _______________________________

                          ON ABATEMENT AND REMAND
                        _______________________________

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

      Aaron Jamel Lewis (appellant) appeals from his conviction for possession of a

controlled substance in a drug-free zone. He filed his notice of appeal on July 22, 2008.

The clerk’s record was filed on October 24, 2008, the reporter’s record on October 17,

2008, and a supplemental clerk’s record on December 8, 2008. Appellant’s brief was due

on November 24, 2008. Neither a brief nor a motion for extension was filed by that date
with the court. On December 10, 2008, the court sent a letter to appellant notifying him

that the brief was overdue and that the brief or response was due on December 22, 2008.

On December 11, 2008, counsel for appellant filed a motion for extension of time to file

appellant’s brief, which was granted to December 29, 2008. To date, no brief or extension

motion has been filed.

       Consequently, we abate the appeal and remand the cause to the 181st District Court

(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 is indigent;

       2.     whether appellant desires to prosecute the appeal;

       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 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


                                               2
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 February 5, 2009. Should

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

before February 5, 2009.

      It is so ordered.



                                                Per Curiam

Do not publish.




                                            3
