                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-15-00350-CR


                         DANIEL LEE HELSLEY, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 251st District Court
                                  Randall County, Texas
                Trial Court No. 25,538-C, Honorable Ana Estevez, Presiding

                                   October 19, 2016

                            ORDER ON ABATEMENT
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Daniel Lee Helsley, appellant, filed an appeal from his conviction for sexual

assault of a child on September 23, 2015. The clerk’s record was filed on December

29, 2015 and the reporter’s record, after obtaining an extension, was filed on February

1, 2016. Appellant’s brief was then due on March 2, 2016. However, on March 7, 2016,

appellant filed for an extension to file his brief which was granted to April 1, 2016. No

brief was filed on that date and a letter dated April 8, 2016 was sent by the court

notifying appellant of this matter and giving him until April 18 to correct same. No
contact was made with the court by that date and the appeal was abated back to the

trial court to determine: 1) whether appellant desired to prosecute the appeal; 2)

whether appellant was indigent; 3) why a timely appellate brief had not been filed on

behalf of appellant; 4) whether appellant had been denied the effective assistance of

counsel due to counsel’s failure to timely file an appellate brief; 5) whether new counsel

should be appointed; and 6) if appellant desired to continue the appeal, the date the

court may expect appellant’s brief to be filed. The hearing on the above referenced

questions was to be held by May 31, 2016.

      On May 31, 2016, the court received a second extension motion and an Anders

brief filed by appellant's attorney, Darrell R. Carey. In the second extension motion, he

stated that “[a]ppellant needs additional time to file his brief in that there are complex

legal issues that must be thoroughly examined, researched, and finally presented in a

brief for . . . [the] Court.” Apparently, the “complex legal issues” could be summed up in

an Anders brief.

      Subsequently, this court discovered that the appellate record did not contain

“State’s Exhibit No. 7 – CD” which was admitted at trial. We inquired several times of

Carey whether the exhibit had been reviewed by him and provided to appellant.

However, Carey opted not to respond to us. So, on August 23, 2016, the court notified

Carey that his Anders brief and motion to withdraw was struck due to his failure to

comply with the rules applicable to filing such a document. We also ordered him to “file

an appellant’s brief conforming to the Texas Rules of Appellate Procedure or an Anders

brief conforming to the requirement of Anders . . . on or before September 2, 2016.” He

was told that [s]hould the latter be pursued once again, then appellant's counsel is



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ordered to review the entire appellate record, including all exhibits admitted at trial,

before determining whether he can assert an arguable issue for review on behalf of his

client.”

           As before, we heard nothing from Carey. He filed neither a brief nor any other

communication with the court. So, we abated the appeal to the trial court for a second

time and directed it to determine, among other things, whether Carey denied his client

the effective assistance of counsel. The trial court held a telephonic hearing wherein

counsel explained he had not understood our previous directive. We make no comment

on whether this representation to the trial court was true or false, but we do observe that

we know of no effort on his part to contact this court to clarify any supposed confusion.

Carey also represented to the trial court in the telephonic hearing that he could file his

brief by Friday, October 14, 2016. That date passed, and we received neither a brief

nor any other communication from Carey.

           This appeal has now been pending for over a year. It has been abated back to

the trial court twice due to Carey's inability to file an appellant’s brief complying with the

rules of appellate procedure or the rules applicable to an Ander's brief. Therefore, we

find as a matter of law that Darrell R. Carey, S.B.N. 03791700, has rendered appellant

ineffective assistance of counsel. Accordingly, we 1) modify our previous order striking

the motion to withdraw filed by Carey in support of his original Ander’s brief, 2) reinstate

only the motion to withdraw, and 3) grant the motion to withdraw due to Carey’s failure

to provide appellant effective assistance of counsel. We further abate the appeal to the

trial court and order it to appoint appellant new counsel to prosecute this appeal on or

before October 29, 2016. The trial court shall cause a supplemental record to be filed



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with the clerk of this court on or before October 28, 2016, which record shall contain the

name, address, and phone number of the newly appointed counsel. Pertinent briefing

deadlines will be set once new counsel is appointed.

       Finally, the clerk of this court is directed to forward this order to the State Bar of

Texas.   Though we are not prone to initiating grievance proceedings against legal

counsel, the exceptional circumstances encountered here merit the potential

consideration of discipline by that entity.

       It is so ordered.

                                                                Per Curiam



Do not publish.




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