
NO. 07-08-0425-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 30, 2009

______________________________


ALFREDO PEREZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2007-417,321; HONORABLE JIM BOB DARNELL, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 
ABATEMENT AND REMAND
          Following an open plea of guilty, Appellant, Alfredo Perez, was convicted by the trial
court of murder.  Punishment was assessed at confinement for life.  The clerk’s record was
filed on December 12, 2008, but due to caseload, the reporter’s record was not filed until
May 5, 2009.  Appellant’s brief was due to be filed on June 4, 2009, but has yet to be filed. 
See Tex. R. App. P. 38.6(a)(2).  By letter dated June 16, 2009, this Court notified
Appellant’s appointed counsel, Maxwell C. Peck, III, of the defect and explained that failure
to file the brief by June 29, 2009, would result in the appeal being abated and the cause
remanded to the trial court for further proceedings.  See Tex. R. App. P. 38.(b)(2) and (3). 
In response, counsel filed a motion for extension of time citing as good cause that he was
drafting a Petition for Discretionary Review and “researching and preparing for two
previously unscheduled and unanticipated pretrial hearings in [that] matter.”
 
Notwithstanding the fact that counsel’s motion failed to allege good cause, the motion was
granted and the deadline in which to file the brief was extended to July 3, 2009.  To date,
the brief remains outstanding.
          Given the information available to this Court, we now abate this appeal and remand
the cause to the trial court for further proceedings.  Upon remand, the trial court shall
determine why counsel has failed to timely file Appellant’s brief and take such action as is
necessary to ensure that the brief is filed with the Clerk of this Court on or before August
13, 2009.
          Should counsel timely file the brief, he is directed to immediately notify the trial
court, in writing, of the filing.  If the trial court does not receive notification of the timely filing
of Appellant’s brief by the above-stated due date, pursuant to Rule 38.8(b)(2) and (3) of
the Texas Rules of Appellate Procedure, the trial court is directed to utilize whatever
means necessary to determine the following: 
          1.       whether Appellant still desires to prosecute this appeal;
2.whether Appellant’s counsel has effectively abandoned this appeal
given his failure to timely file Appellant’s brief; 
3.whether Appellant has been denied effective assistance of counsel;
and 
4.if Appellant’s counsel has effectively abandoned this appeal or
Appellant has been denied effective  of counsel, whether Appellant is
indigent and entitled to the appointment of new counsel;
 
On or before August 27, 2009, the trial court shall enter an order containing findings of fact
and conclusions of law addressing each of these issues.  In addition to filing that order, a
copy of the same shall be forthwith delivered to the Clerk of this Court.  Should it be
determined that Appellant still desires to prosecute the appeal and has either retained new
counsel or is entitled to the appointment of new counsel, said order shall contain the name,
address, telephone number, and state bar number of the newly-retained or newly-appointed counsel.  Finally, the trial court shall cause a supplemental clerk’s record
containing that order to be filed with this Court as soon as practicable.   
          It is so ordered.
                                                                                      Per Curiam
Do not publish.
