                                          NO. 07-08-0076-CR
                                          NO. 07-08-0077-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL E

                                        JULY 23, 2008
                               ______________________________

                                          ARNALDO ORTIZ,

                                                                           Appellant

                                                     v.

                                      THE STATE OF TEXAS,

                                                                           Appellee

                            _________________________________

              FROM THE 46th DISTRICT COURT OF WILBARGER COUNTY;

               NOS. 10,937 and 11,009; HON. DAN MIKE BIRD, PRESIDING
                         _______________________________

                                ON ABATEMENT AND REMAND
                              _______________________________

Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.1

        Arnaldo Ortiz (appellant) appeals from two counts of aggravated sexual assault of

a child. He filed his notices of appeal on February 1, 2008. The clerk’s records were filed

on February 27 and 28, 2008, and the reporter’s records on March 25, 2008. However, the

appeals were abated to the trial court on March 4, 2008, because appellant had not signed


        1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent. Tex. Gov’t Code
Ann. §75.002(a)(1) (Vernon Supp. 2008).
the trial court certification. The amended certifications and supplemental clerk’s records

were filed on March 13, 2008. On March 31, 2008, counsel for appellant filed a motion to

withdraw, which was granted. New counsel filed motions for extension of time to file a brief

in each case on May 12, 2008, which motions were granted to June 9, 2008. On June 10,

2008, second extension motions were filed and granted to June 30, 2008, with the

admonition that no further extensions would be granted. No brief or extension was filed

with the Court. On July 7, 2008, a letter was sent to appellant’s attorney notifying him the

briefs were overdue and that they or a response was due on July 17, 2008. To date, no

brief or extension motion has been filed in this Court.

       Consequently, we abate the appeal and remand the cause to the 46th District Court

(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 is indigent;

       2.     whether appellant desires to prosecute the appeals; and

       3.     whether appellant has been denied the effective assistance of
              counsel due to appellate counsel’s failure to timely file appellate
              briefs. 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 appeals, 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

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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

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 August 11, 2008. Should

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

before August 11, 2008.

       It is so ordered.

                                                 Per Curiam

Do not publish.




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