NO. 07-04-0274-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 5, 2004

______________________________

JAIME CUELLAR,

Appellant

v.

THE STATE OF TEXAS, 

Appellee

_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 48339-E; HON. ABE LOPEZ, PRESIDING

_______________________________

ABATEMENT AND REMAND

__________________________________

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

Jaime Cuellar (appellant) appeals his conviction of possession of marijuana. The

clerk’s record was filed on July 12, 2004, and the reporter’s record was filed on July 8,

2004. Thus, appellant’s brief was due on August 12, 2004, and counsel for appellant filed

a motion to extend the deadline. The motion was granted, resulting in an extension of the

deadline to September 13, 2004. That date passed without appellant filing a brief,

however. So, on September 21, 2004, this Court notified appellant that neither the brief nor
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an extension of time to file it had been received by the court. Appellant was also

admonished that if he did not respond to the court’s letter by October 1, 2004, the appeal

would be abated to the trial court. October 1st also passed without appellant filing a brief,

moving for an extension, or responding in any way to our September 21st letter.

Consequently, we abate this appeal and remand the cause to the 108th District

Court 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, has appointed counsel, and has been denied effective

assistance of counsel, or has no 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, 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
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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 November 4, 2004. Should additional time be needed to

perform these tasks, the trial court may request same on or before November 4, 2004.

It is so ordered.

Per Curiam

Do not publish.