                                    NO. 07-09-0039-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                       JUNE 3, 2009

                           ______________________________


                             JASON E. STEELY, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2007-417068; HONORABLE CECIL G. PURYEAR, JUDGE

                          _______________________________

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


                               ABATEMENT AND REMAND


       Following a plea of not guilty, Appellant, Jason E. Steely, was convicted by a jury

of possession of a controlled substance, a state jail felony. The jury sentenced Appellant

to nineteen months in a state jail facility. The clerk’s record and reporter’s record have both

been filed. Appellant’s brief was due to be filed on April 16, 2009, but has yet to be filed.
Neither has a motion for extension of time been filed. By letter dated April 29, 2009, this

Court notified Appellant’s appointed counsel, Kelly Clark, of the defect and explained that

failure to file the brief by May 11, 2009, would result in the appeal being abated and the

cause remanded to the trial court for further proceedings. See Tex. R. App. P. 38.8(b)(2)

and (3). Counsel did not respond to the Court’s notice nor file Appellant’s brief.


       Therefore, we now abate this appeal and remand the cause to the trial court for

further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate

Procedure. Upon remand, the trial court shall utilize whatever means necessary to

determine the following:


       1.     whether Appellant has been denied effective assistance of counsel
              given appointed counsel’s failure to file a brief;
       2.     whether Appellant still desires to prosecute this appeal; and, if so
       3.     whether appointed counsel should be removed and new counsel
              appointed to pursue this appeal.


       Should it be determined that Appellant does want to continue the appeal and the trial

court determines Appellant is entitled to new appointed counsel or has retained new

counsel, the name, address, telephone number, and state bar number of the newly-

appointed or newly-retained counsel shall be provided to the Clerk of this Court. Finally,

the trial court shall execute findings of fact, conclusions of law, and any necessary orders

it may enter regarding the aforementioned issues and cause its findings, conclusions, and

orders, if any, to be included in a supplemental clerk's record. A supplemental reporter’s


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record of the hearing, if any, shall also be included in the appellate record. Finally, the trial

court shall file the supplemental clerk's record and the supplemental reporter's record, if

any, with the Clerk of this Court by July 15, 2009.


       It is so ordered.




                                                    Per Curiam


Do not publish.




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