                                   NO. 07-09-0264-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                               NOVEMBER 17, 2009
                         ______________________________

                              ARMANDO BARRERA, JR.,

                                                              Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                              Appellee

                       _________________________________

            FROM THE 110th DISTRICT COURT OF DICKENS COUNTY;

                   NO. 2367; HON. WILLIAM P. SMITH, PRESIDING
                        _______________________________

                           ON ABATEMENT AND REMAND
                         _______________________________

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

        Armando Barrera, Jr. (appellant) appeals from his conviction for driving while

intoxicated. He filed his notice of appeal on August 7, 2009. The clerk’s record was filed

on September 1, 2009, and the reporter’s record on September 25, 2009. Appellant’s brief

was due on October 26, 2009. Neither a brief nor a motion for extension was filed by that

date, however. On November 2, 2009, the court sent a letter to appellant notifying him that
the brief was overdue and that it or response was due on November 12, 2009. To date,

no brief nor an extension to file the brief has been filed.

       Consequently, we abate the appeal and remand the cause to the 110th District

Court (trial court) for further proceedings. Upon remand, the trial court shall undertake

those proceedings necessary to determine the following:

       1.     whether appellant is indigent;

       2.     whether appellant desires to prosecute the appeal;

       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); and,

       4.     why appellant’s appointed counsel has not complied with the
              previously established deadlines.

       Should the trial court find that appellant desires to pursue the appeal, is indigent,

and has been denied effective assistance of counsel, we direct it to appoint new counsel

for appellant to prosecute the appeal. Any and all orders issued as a result of its

proceeding shall be included in a supplemental clerk’s record and filed with this court on

or before December 17, 2009. Should additional time be needed to perform these tasks,

the trial court may request same on or before December 17, 2009.

       It is so ordered.



                                                   Per Curiam

Do not publish.

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