                                  NO. 07-06-0352-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                JANUARY 18, 2007
                         ______________________________

                               ROBERTO RODRIGUEZ,

                                                              Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 251st DISTRICT COURT OF RANDALL COUNTY;

                NO. 15,828-C; HON. PATRICK A. PIRTLE, PRESIDING
                        _______________________________

                            ABATEMENT AND REMAND
                       __________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Roberto Rodriguez (appellant) appeals his criminal conviction. Per an extension of

the deadline previously granted him, his appellate brief was due by December 27, 2006.

Yet, it has not been received to date. This court informed appellant of this circumstance

by letter dated January 4, 2007, and told him that unless a brief or response to our letter

was received by the Court “on or before Tuesday, January 16, 2007, the appeal will be
abated to the trial court.” January 16th passed without appellant filing either a brief or

response to our January 4 th letter.

       Consequently, we abate the appeal and remand the cause to the 251st District

Court of Randall 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 is indigent;

       2.     whether appellant desires to prosecute the appeal; and

       2.     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 February 20, 2007. Should

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

before February 20, 2007.

      It is so ordered.

                                               Per Curiam

Do not publish.




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