




BRIAN MILLSAP V. SHOW TRUCKS USA, INC.






NO. 07-09-0030-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 3, 2009
______________________________

JASON EARLE WELLS,
 
Appellant

v.

THE STATE OF TEXAS, 
 
Appellee

                                     _________________________________

FROM THE 26th DISTRICT COURT OF WILLIAMSON COUNTY;

NO. 05-1399-K26; HON. BILLY RAY STUBBLEFIELD, PRESIDING
_______________________________

ON ABATEMENT AND REMAND
_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
           Jason Earle Wells (appellant) appeals from his conviction for burglary of a
habitation.  He filed his notice of appeal on October 27, 2008.  The reporter’s record was
filed on February 2, 2009, and the clerk’s record on March 4, 2009.  Appellant’s brief was
due on April 3, 2009.  Neither a brief nor a motion for extension was filed by that date,
however.  On April 13, 2009, the court sent a letter to appellant notifying him that the brief
was overdue and that it or response was due on April 23, 2009.  On April 20, 2009,
appellant filed a motion for extension of time to file the brief.  It was granted, and the
deadline was extended to May 4, 2009.  On May 11, 2009, this Court received appellant’s
second motion for extension of time and extended the deadline to May 26, 2009.  At that
time we also told him that if the brief was not filed by that date, the appeal would be abated. 
To date, no brief has been filed.
          Consequently, we abate the appeal and remand the cause to the 26th 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 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).

          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 appeal.  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) 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 3, 2009.  Should additional
time be needed to perform these tasks, the trial court may request same on or before July
3, 2009.
          It is so ordered.
 
                                                                           Per Curiam
Do not publish.
