                                   NO. 07-02-0515-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   APRIL 1, 2003
                          ______________________________

                              TERRY ANTHONY WILSON,

                                                         Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                Appellee
                        _________________________________

             FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                  NO. 45,476-B; HON. JOHN B. BOARD, PRESIDING
                        _______________________________

                            ABATEMENT AND REMAND
                       __________________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

       Terry Anthony Wilson (appellant) appeals his conviction for possession of a

controlled substance. The clerk’s and reporter’s records were filed on February 10, 2003.

Thus, appellant’s brief was due on March 12, 2003. However, one was not filed on that

date. By letter, this Court notified appellant’s counsel of the expired deadline and directed

him to respond to our letter by Monday, March 31, 2003, or the appeal would be abated
to the trial court pursuant to TEX . R. APP . P. 38.8. That date has lapsed, and appellant still

has yet to file a brief.

       Consequently, we abate this appeal and remand the cause to the 181st 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;

       2.      whether appellant is indigent and entitled to appointed counsel; and,

       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).

       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 has been 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

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


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record to be filed with the clerk of this court on or before May 1, 2003. Should additional

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

1, 2003.

      It is so ordered.

                                                 Per Curiam

Do not publish.




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