                                           NO. 07-03-0060-CR

                                    IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                  PANEL E

                                      FEBRUARY 19, 2004
                                ______________________________

                                   JONATHAN RAY GRIFFIN, SR.,

                                                                    Appellant

                                                      v.

                                       THE STATE OF TEXAS,

                                                      Appellee
                             _________________________________

             FROM THE 252ND DISTRICT COURT OF JEFFERSON COUNTY;

                       NO. 81858; HON. LEONARD GIBLIN, PRESIDING
                            _______________________________

                                 ABATEMENT AND REMAND
                            __________________________________

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

        Jonathan Ray Griffin, Sr. (appellant) appeals his conviction for manslaughter.

Appellant’s brief was due on December 4, 2003. However, one was not filed on that date.

Instead, this court received, on December 8, 2003, a motion requesting that the deadline

be extended for 60 days. Counsel sought to justify the extension by stating that he “had

insufficient time to complete Appellant’s brief due to his heavy hearing and trial schedule.”


        1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of A ppe als, sitting by as signme nt. Tex. Gov’t Code
Ann. §75.00 2(a)(1 ) (Vernon Supp. 2004 ).
We extended the briefing deadline to January 12, 2004. No brief was filed on that date

either. Instead, appellant again moved for another 60-day extension based upon the same

grounds mentioned in his first motion. We again extended the deadline to February 11,

2004. Furthermore, in our letter informing appellant of the extension, we advised him and

his counsel that failure to comply with this deadline may result in the appeal being abated

and the cause remanded to the trial court for further proceedings per Texas Rule of

Appellate Procedure 38.8(b)(2). February 11th passed, and appellant again filed no brief.

As before, he sought, for the third time, an additional 60-day extension. The reason

purportedly justifying it was no different from the others, i.e. counsel “had insufficient time

to complete Appellant’s brief due to his heavy hearing and trial schedule.” Yet, the nature

of this allegedly “heavy hearing and trial schedule” or the matter, number of cases, and the

like comprising it has never been explained. This is of import for simply stating that one is

too busy to attend to pending legal business does not justify delay. Curry v. Clayton, 715

S.W.2d 77, 79 (Tex. App.–Dallas 1986, no writ).

       Consequently, we deny the request for an additional extension of the deadline. So

too do we abate this appeal and remand the cause to the 252nd District Court of Jefferson

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

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              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, has appointed counsel, and has been denied effective

assistance of counsel, then 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 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 March

19, 2004. Should additional time be needed to perform these tasks, the trial court may

request same on or before March 19, 2004.

       It is so ordered.

                                                  Per Curiam

Do not publish.




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