                                  NO. 07-09-0099-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL B

                                OCTOBER 30, 2009
                         ______________________________

                         VICTOR D. WALLACE, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

           FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2008-418,755; HONORABLE JIM BOB DARNELL, JUDGE
                      _______________________________


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


                             ABATEMENT AND REMAND


      Following a jury trial, appellant, Victor D. Wallace, was convicted of indecency with

a child. Punishment was assessed at confinement for a period of sixty years. The clerk's

record was filed on May 12, 2009 and the reporter's record was filed on June 30, 2009.

Appellant's counsel requested and received two extensions of time, making the appellate

brief due to be filed on September 30, 2009. No brief was filed by that deadline.
       By letter dated October 8, 2009, this Court notified appellant's appointed counsel,

Maxwell C. Peck, III, the brief was past due, and explained that failure to file the brief by

October 19, 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). To date, the brief

remains unfiled.


       Consequently, we abate the appeal and remand the cause to the trial court for

further proceedings. On 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 is indigent;


       2. whether appellant desires to prosecute the appeal; and


       3. whether appellant has been denied the effective assistance of counsel due to

       appellate counsel's failure to timely file 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 appeals. 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
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 November 30, 2009. Should

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

before November 30, 2009.


      It is so ordered.


                                                Per Curiam




Do not publish.




                                            3
