                                   NO. 07-03-0216-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                NOVEMBER 13, 2003
                          ______________________________

                           JONATHAN SHANE ROSS PEAKE,

                                                        Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                Appellee
                        _________________________________

         FROM THE 359TH DISTRICT COURT OF MONTGOMERY COUNTY;

            NO. 01-08-05233-CR; HON. JAMES H. KEESHAN, PRESIDING
                       _______________________________

                            ABATEMENT AND REMAND
                       __________________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

       Jonathan Shane Ross Peake (appellant) appeals his conviction for aggravated

robbery. The clerk’s record was filed on May 2, 2003, and the reporter’s record was filed

on August 18, 2003. Thus, appellant’s brief was due on September 18, 2003. However,

one was not filed on that date. On September 25, 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
October 6, 2003, the appeal would be abated to the trial court. In response, counsel for

appellant moved this Court for an extension of time to file appellant’s brief to October 20,

2003. He justified his request by asserting that he was busy with other legal matter. We

extended the deadline to October 20, 2003. On October 20, 2003, instead of filing

appellant’s brief, counsel for appellant filed a second request to extend the briefing

deadline. Again, he justified the request by contending that he was busy performing other

legal matter. Since being too busy with other things was insufficient reason to warrant

further delay, we denied the motion but nonetheless gave appellant until November 5,

2003, to file the brief. That date has passed, and appellant has not filed a brief or moved

for another extension.

       Consequently, we abate this appeal and remand the cause to the 359th District

Court of Montgomery 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


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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

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 December 12, 2003. Should

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

before December 12, 2003.

       It is so ordered.

                                                 Per Curiam

Do not publish.




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