
BRIAN MILLSAP V. SHOW TRUCKS USA, INC.






NO. 07-06-0352-CR



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL B



JANUARY 18, 2007

______________________________



ROBERTO RODRIGUEZ,



Appellant



v.



THE STATE OF TEXAS, 



Appellee

_________________________________



FROM THE 251st DISTRICT COURT OF RANDALL COUNTY;



NO. 15,828-C; HON. PATRICK A. PIRTLE, PRESIDING

_______________________________



ABATEMENT AND REMAND

__________________________________



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

Roberto Rodriguez (appellant) appeals his criminal conviction.  Per an extension of the deadline previously granted him, his appellate brief was due by December 27, 2006.  Yet, it has not been received to date.  This court informed appellant of this circumstance by letter dated January 4, 2007, and told him that unless a brief or response to our letter was received by the Court “on or before Tuesday, January 16, 2007, the appeal will be abated to the trial court.”  January 16th passed without appellant filing either a brief or response to our January 4
th
 letter.  

Consequently, we abate the appeal and remand the cause to the 251st District Court of Randall 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:


whether appellant is indigent; 





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 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 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 20, 2007.  Should additional time be needed to perform these tasks, the trial court may request same on or before February 20, 2007.

It is so ordered.

Per Curiam

Do not publish.

