

                                                            NO.
07-10-0406-CR
 
                                                   IN
THE COURT OF APPEALS
 
                                       FOR
THE SEVENTH DISTRICT OF TEXAS
 
                                                                 AT
AMARILLO
 
                                                                      PANEL
B
 
                                                           FEBRUARY
22, 2011
                                            ______________________________
 
                                                             ANDREW
YATES,
 
                                                                                                            Appellant
 
                                                                             v.
 
                                                        THE
STATE OF TEXAS, 
 
                                                                                                            Appellee
_______________________________
 
                     FROM
THE 396TH DISTRICT COURT OF TARRANT COUNTY;
 
                         NO.
1159467D; HON. GEORGE GALLAGHER, PRESIDING
                                           _______________________________
                                                                              
                                                    On
Abatement and Remand
                                           _______________________________
 
Before
QUINN, C.J., and CAMPBELL and HANCOCK, JJ.




Andrew Yates, appellant, appeals his conviction from
the offense of robbery causing bodily injury. 
Appellant timely perfected this appeal by filing a notice of appeal on
September 9, 2010.  The clerk’s record
was filed on November 15, 2010, and the reporter’s record on November 18, 2010.  Therefore, appellant’s brief was due to be
filed by December 20, 2010.  No brief or
extension motion was filed by that date. 
On December 28, 2010, the court sent a letter to counsel for appellant
notifying him that the brief was overdue and that it or a response was due on
January 7, 2011.  On January 7, 2011,
counsel for appellant filed a motion to extend time to file appellant’s brief,
which was granted to February 10, 2011, with the admonition that no further
extensions would be granted.  To date, no
brief has been filed.
Consequently, we abate the appeal and
remand the cause to the 396th District Court of Tarrant County (trial court)
for further proceedings.  Upon remand,
the trial court shall undertake those proceedings necessary to determine the
following:
1.           
whether
appellant is indigent; 
 
2.           
whether
appellant desires to prosecute the appeal;
 
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); and,
 
4.         why appellant=s appointed counsel has not complied
with the previously established deadline.
 
Should the trial court find that
appellant desires to pursue the appeal, is indigent, and has been denied effective
assistance of counsel, we direct it to appoint new counsel for appellant to
prosecute the appeal.  Any and all orders
issued as a result of its proceeding shall be included in a supplemental clerk=s record and filed with this court on or
before March 24, 2011.  Should additional time be needed to
perform these tasks, the trial court may request same on or before March 24,
2011.
It is so ordered.
                                                                                    Per
Curiam
Do
not publish. 
 
 

