                                       NO. 07-02-0464-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                    FEBRUARY 4, 2003
                             ______________________________

                                    PATRICIA LYNN KYLES,

                                                              Appellant

                                                  v.

                                    THE STATE OF TEXAS,

                                                  Appellee
                          _________________________________

           FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY;

                  NO. 86473; HON. CHARLES D. CARVER, PRESIDING
                         _______________________________

                                 ABATEMENT AND REMAND

                          __________________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.*

       Patricia Lynn Kyles (appellant) appeals her conviction for misdemeanor theft. The

clerk’s record was filed on October 15, 2002. The reporter’s record was filed on December

12, 2002. Thus, appellant’s brief was due on January 13, 2003. However, one was not

filed on that date. By letter dated January 21, 2003, we notified appellant’s counsel,


       *
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t
Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
Norman Desmarais, of the expired deadline and directed him to respond to our notification

of same by Friday, January 31, 2003, or the appeal would be abated to the trial court

pursuant to TEX . R. APP . P. 38.8. January 31, 2003, passed without appellant submitting

any response to our notice.

       Consequently, we abate this appeal and remand the cause to the Criminal District

Court of Jefferson 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:

       1.     whether appellant desires to prosecute the appeal;

       2.     whether appellant is indigent; and,

       3.     whether appellant has been denied the effective assistance of
              counsel due to counsel’s failure to timely file a 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 this appeal, is indigent, and was denied effective assistance of counsel, then we

further direct the court 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 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 March 5, 2003. Should additional

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

March 5, 2003.

       It is so ordered.

                                                  Per Curiam

Do not publish.




                                             3
