                                          NO. 07-07-0265-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL E

                                      JANUARY 31, 2008
                               ______________________________

                                    JUSTIN CURTIS OEHLERT,

                                                                           Appellant

                                                     v.

                                      THE STATE OF TEXAS,

                                                                           Appellee

                            _________________________________

               FROM THE 251st DISTRICT COURT OF RANDALL COUNTY;

                       NO. 15,547-C; HON. ANA ESTEVEZ, PRESIDING
                            _______________________________

                                ON ABATEMENT AND REMAND
                              _______________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

        Justin Curtis Oehlert (appellant) appeals from his conviction for aggravated robbery.

He filed his notice of appeal on July 6, 2007. The clerk’s record was filed on October 1,

2007, and the reporter’s record on November 19, 2007. Therefore, appellant’s brief was

due on December 19, 2007. On January 2, 2008, a letter was sent to appellant’s attorney



        1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent. Tex. Gov’t Code
Ann. §75.002(a)(1) (Vernon Supp. 2007).
notifying him the brief was overdue and that the brief or response was due January 14,

2008. In response, appellant’s counsel filed a motion for extension of time to file a brief,

which was granted to January 18, 2008. To date, no brief or extension motion has been

filed in this Court.

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

       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

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

                                                2
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 3, 2008. Should additional

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

March 3, 2008.

       It is so ordered.

                                                  Per Curiam

Do not publish.




                                             3
