NO. 07-04-0013-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D FEBRUARY 24, 2005

______________________________ CARLOS FERRER, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 140TH DISTRICT COURT OF LUB BOCK COUNTY; NO. 2003-403301; HONORABL E JIM BOB DARNELL , JUDGE

_______________________________ Before QUINN and REAVIS and CAMPBELL , JJ.
ON ABATEMENT AND REMAND
C ar los Ferrer appeals his conviction for aggravated sexua l assault. The clerk’s record was filed on February 23, 200 4, and the reporter’s record was filed on May 20, 2004. This matter was a bate d on August 19, 2004 for determination of indigen cy and appointmentof counsel. The case was reinstated on A ugust 25, 2004. Appellant’sbrie f
was due on Septembe r 24, 2004. On October 21, 2004, this court notified appointed-2-

counsel for appellant that neither the brief nor an extension of time to file appel lant’s brief had been filed. Counsel for appellant was al so admonished that if appellant’s brief was not filed by Novem ber 1, 20 04, the a ppeal wo uld be a bated to the trial court. On that date, counsel for appellant filed amotion for extension of time, which was granted, making the brief due November 29, 2004. A second motion for extensio n was filed by appellant’s counsel on Dece mber 3, 20 04, and extensio n was gra nted unti l Januar y 3, 200 5. When appellant’s brief was not filed by January 25, this court sent app ellant asecond letter notifying him that appellant’s brief had not been fil ed and stat in g the appeal would be abated if a brief was not filed by February 4, 2005. On January 31, counsel requested a third extensi on of time , through February 27. Cou nsel’s e arlier re quests fo r extens ion were based on delay in receiving the appellate record from previous counsel. The third request cited counsel’s workload. The third request was granted only to theextent the brief’s due date was extended toFebruary 14, 2005

. The Court also again admonished counse l that if the deadline was not complied with the appeal would be abated and the cause remanded to the trial court in acco rd with Te xas Rul e of Appe llate Pr ocedure 3 8.8(b)(2). That da te is well past, and appellant has neither fil ed a brief nor submitted a further mo ti on for extensi on. Consequently, we abate the appeal and remand the cause to the 14 0th District Court of Lubbock

County ( trial cou rt) for furt her proce edings. Upon remand, the trial court shall immediatelycause notice of a he ar ing to begiven a nd thereafter, cond uct a hea ring to determine

the foll owing:
1. whether appellant desires to prosecute the appeal;-3-

2. whether

appellant has been denied the ef fective assistance of counsel due to appella te counsel ’s failu re to time ly file a n appell ate brief

. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35, 83 L. Ed. 2d 821, 828 (1985) (h olding t hat indi gent defe ndant isentitled to the effective assistance of counsel on the first appeal as a matter of right and that counsel must be available to assist in preparin g and submittin g an app ellate b rief).
Tex. R. A pp. P. 38 .8(b)(2).
We further direct the trial court to issue findings of fact and concl usions of law addres sing the foregoing subjects. Should the trial court find that appel lant desires t o pu rsue this appeal and has been denied effective assistance of counsel, then we further directthe court to appoint new counsel t o assist in the prosecution of the appeal. The name, address, phone n umber, faxnumber and state bar number of the new counsel w ho will represent appellant on appeal must also be included in the court’s findings of fact and conclusion s of law . Furthermore, the trial cou rt shall also cau se to be d evelope d (1) a supplemental clerk’s record containing the findings of fact and conclusions of law and (2)
a supplemental reporter’s record transcribing the evidence and argument presented at the hearing. Tex. R. App. P. 38.8(b)(3). Additionally, the trial court shall cau se the supplemental clerk’s record an d the sup plementa l reporte r’s record to be fil ed with the clerk of this court on or before March 25, 2005. Should a d di tional ti me be nee ded to pe rform these tasks, the trial court may request additional time before March 25, 200 5.
Per Curiam Do not publish.