                                  NO. 07-01-0147-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                NOVEMBER 6, 2001
                         ______________________________

                            TRUMAN TOMMY MATTHEWS

                                                       Appellant

                                            v.

                                THE STATE OF TEXAS,

                                               Appellee
                       _________________________________

             FROM THE 155th DISTRICT COURT OF WALLER COUNTY;

                  NO. 98-05-9372; HON. DAN R. BECK, PRESIDING
                       _______________________________

                             ABATEMENT AND REMAND
                         _______________________________

Before QUINN, REAVIS, and JOHNSON, JJ.

      Truman Tommy Matthews (appellant) appeals his conviction for murder. Both the

clerk’s and court reporter’s records were filed by September 20, 2001. Thus, appellant’s

brief was due on October 22, 2001. However, one was not filed on that date. By letter

dated October 26, 2001, we notified appellant’s counsel, Kristine C. Woldy, of the expired

deadline and directed her to respond to our notification of same by Monday, November 5,

2001, or the appeal would be abated to the trial court pursuant to TEX . R. APP . P. 38.8.
November 5, 2001 came and went without any response by counsel to our notice, without

counsel tendering a brief, and without counsel filing a motion for extension of time to file

a brief.

       Consequently, we abate this appeal and remand the cause to the 155th District

Court of Waller 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; and

       2.     whether appellant is indigent;

       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


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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 December 6, 2001.     Should

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

before December 6, 2001.

       It is so ordered.

                                                 Per Curiam




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