NO. 07-04-0013-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

FEBRUARY 24, 2005

______________________________

CARLOS FERRER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-403301; HONORABLE JIM BOB DARNELL, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

ON ABATEMENT AND REMAND

Carlos Ferrer appeals his conviction for aggravated sexual assault. The clerk’s

record was filed on February 23, 2004, and the reporter’s record was filed on May 20,

2004. This matter was abated on August 19, 2004 for determination of indigency and

appointment of counsel. The case was reinstated on August 25, 2004. Appellant’s brief

was due on September 24, 2004. On October 21, 2004, this court notified appointed
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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 November 1, 2004, the appeal would be abated to the trial court. On that date,

counsel for appellant filed a motion for extension of time, which was granted, making the

brief due November 29, 2004. A second motion for extension was filed by appellant’s

counsel on December 3, 2004, and extension was granted until January 3, 2005. When

appellant’s brief was not filed by January 25, this court sent appellant a second letter

notifying him that appellant’s brief had not been filed and stating the appeal would be

abated if a brief was not filed by February 4, 2005. On January 31, counsel requested a

third extension of time, through February 27. Counsel’s earlier requests for extension 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 the extent the brief’s due

date was extended to February 14, 2005. The Court also again admonished counsel that

if the deadline was not complied with the appeal would be abated and the cause remanded

to the trial court in accord with Texas Rule of Appellate Procedure 38.8(b)(2). That date

is well past, and appellant has neither filed a brief nor submitted a further motion for

extension. 

Consequently, we abate the appeal and remand the cause to the 140th District Court

of Lubbock 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;
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2. 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 indigent defendant is entitled to the

effective assistance of counsel on the first appeal as a matter of right

and that counsel must be available to assist in preparing and

submitting an appellate brief).

Tex. R. App. P. 38.8(b)(2).

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 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, fax 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 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 cause the

supplemental clerk’s record and the supplemental reporter’s record to be filed with the clerk

of this court on or before March 25, 2005. Should additional time be needed to perform

these tasks, the trial court may request additional time before March 25, 2005.

Per Curiam

Do not publish.