NO. 07-04-0274-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B OCTOBER 5, 2004

______________________________

JAIME CUELLAR, Appellant
v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 108TH DISTRICT COURT OF POTTE R COUNTY; NO. 48339-E; HON. ABE LOPEZ, PRESIDING

_______________________________ ABATEMENT AND RE MAND

__________________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ. Jaime Cuellar (appellant) appeals his conviction of possession of marijuana. The clerk’s recor d was filed on July 12, 2004, and the reporter’s record was filed on July 8, 2004. Thus, appellant’s brief was dueon 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 appella nt filin g a brief , however. So, on September 21, 2004, this Court notified appellant that neither the brief no r2

an extension of time to fil e it had been received by the court. Appel lant 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 tri al court. October 1 stalso pa ssed wit hout app ellant fi ling a b rief, moving fo r an exte nsion, o r respond ing in a ny way to our September 21s t letter. Consequently, we abate this appeal an d re mand the cause to the 108th District Court of Potter

County ( trial cou rt) for furt her proce edings. Upon rema nd, the tr ial cour t shall immediatelycause notice of a hearing to be given and, thereafter, conducta 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 ap pella nt has been denied the effective assistance of counsel due to appel late counsel ’s failu re to time ly file a n appell ate brief

. See Evitts v. Lucey , 469 U.S. 387, 394 , 105 S.C t. 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 ass ist in preparing and submitting an appella te brief). We further direct the trial court to issue findings of fact and concl usions of law addressing the foregoing subjects. Should the trial cou rt find th at appel lant des ires to p ur sue this appeal, is indigent, has appointed counsel, and has been denied effective assistance of counsel, or has no counsel, then we further di rect itto appoint new counsel to assist in the prosecution of the appeal. The name, address, phone n umbe r, telefax number, and state bar number of the new counsel, if any, w ho will represent appellant on appeal must also be includ ed in th e court’s findings of fact and conclusions of law

. Furthermore, the trial court shall also cause to be de veloped 1) a supplemental clerk’s record contain ing the f indingsof fact and co nclusio ns of law and 2) areporter’ s record3

transcribing the evidence and argument presented at the af oreme ntioned hearing. Additionally, the trial court shall cause the supplemental clerk’s record to be filed with the clerk of this court on o r before November 4, 2004. Should additio nal time be neede d 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.