                                   NO. 07-06-0065-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                  AUGUST 8, 2006
                          ______________________________

                                FRANCISCO MURO, JR.,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                     NO. 51,418-E; HON. ABE LOPEZ, PRESIDING
                        _______________________________

                            ABATEMENT AND REMAND
                       __________________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Francisco Muro, Jr. (appellant) appeals his conviction for possession of a controlled

substance. His appellate counsel requested, on June 14, 2006, an extension of time to file

the brief, stating that counsel only recently received access to the reporter’s record. The

extension was granted until July 3, 2006. On July 5, 2006, appellant’s counsel requested

a second extension, stating that due to trial schedule and other pending appellate matters,

he had been unable to adequately prepare a brief. This request was also granted, and the
deadline was extended to July 31, 2006. However, counsel was also admonished that no

further extensions would be granted. So too was he told that the failure to comply with this

deadline would result in the abatement and remand of the appeal. Instead, counsel for

appellant asked that the deadline again be extended until August 31, 2006.

       Consequently, we abate the appeal and remand the cause to the 108th District Court

of Potter 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 has been denied the effective assistance of
              counsel due to appellate counsel’s failure to timely file 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).


       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 the appeal, is indigent, and has been denied effective assistance of counsel, we

further direct it 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,

if any, 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

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


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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 September 7, 2006. Should

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

before September 7, 2006.

      It is so ordered.

                                                Per Curiam

Do not publish.




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