                                       NO. 07-03-0092-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                      JUNE 24, 2003
                             ______________________________

                                 DAMON SCOTT SHRAUNER,

                                                              Appellant

                                                  v.

                                    THE STATE OF TEXAS,

                                                  Appellee
                          _________________________________

           FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

                 NO. 98,683-2; HON. WILLIAM C. DODSON, PRESIDING
                         _______________________________

                               ABATEMENT AND REMAND
                          __________________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

       Damon Scott Shrauner (appellant) appeals his conviction for assault. The clerk’s

record was filed on March 14, 2003, and the supplemental clerk’s record on March 27,

2003. The reporter’s record was filed on March 31, 2003. Thus, appellant’s brief was due

on April 30, 2003. However, one was not filed on that date. Counsel for appellant moved



       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t
Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
for an extension of time to file the brief on April 28, 2003, which extension was granted to

May 30, 2003. However, the brief was not filed on that date either. On June 9, 2003, this

Court notified counsel for appellant that neither the brief nor an extension of time to file

appellant’s brief had been filed. Counsel for appellant was also admonished that if

appellant’s brief was not filed by June 19, 2003, the appeal would be abated to the trial

court. That date has lapsed, and appellant still has yet to file a brief.

       Consequently, we abate this appeal and remand the cause to the County Court at

Law No. 2 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


                                              2
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 July 24, 2003. Should additional

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

24, 2003.

       It is so ordered.

                                                  Per Curiam

Do not publish.




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