NO. 07-97-0375-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 29, 1998

______________________________

JOE LEE MACKEY, APPELLANT

V. 

THE STATE OF TEXAS, APPELLEE

_________________________________

ABATEMENT AND REMAND

_______________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 97-424936; HONORABLE JIM B. DARNELL, JUDGE

_______________________________

Before BOYD, C.J., and DODSON and REAVIS, JJ. 

From a not guilty plea, appellant Joe Lee Mackey, was

convicted of delivery of less than four grams but more than one

gram of cocaine. Upon finding the indictment’s two enhancement

averments true, the jury assessed his punishment at sixty-five

years confinement in the Texas Department of Criminal Justice,
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Institutional Division. Appellant timely filed his notice of

appeal. 

The clerk’s record was filed on December 31, 1997, and the

reporter’s record was filed on January 29, 1998. Appellant is

represented by appointed counsel in this appeal. We granted

appointed counsel three extensions to file appellant’s brief, the

last being due on May 26. 

On July 8, this Court informed the district attorney and

appellant that the appellant’s brief was due on May 26, and yet no

brief had been filed. The Court further advised them that the

appeal would be abated and the cause remanded for a factual hearing

unless appellant filed with this Court, within ten (10) days, a

response satisfactorily explaining the absence of the brief. Tex.

R. App. P. 38.8(b). No such response has been received. 

Accordingly, we abate the appeal and remand the case to the

trial court for proceedings under Rule 38.8(b). In pertinent part,

this rule provides:

(1) Effect. An appellant’s failure to timely file a

brief does not authorize either dismissal of the appeal

or, except as provided in (4), consideration of the

appeal without briefs. 

(2) Notice. If the appellant’s brief is not timely

filed, the appellate clerk must notify counsel for the

parties and the trial court of that fact. If the

appellate court does not receive a satisfactory response

within ten days, the court must order the trial court to

immediately conduct a hearing to determine whether the
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appellant desires to prosecute his appeal, whether the

appellant is indigent, or, if not indigent, whether

retained counsel has abandoned the appeal, and to make

appropriate findings and recommendations. (Emphasis

added).

(3) Hearing. In accordance with (2), the trial court

must conduct any necessary hearings, make appropriate

findings and recommendations, and have a record of the

proceedings prepared, which record--including any order

and findings--must be sent to the appellate court. 

(4) Appellate court action. Based on the trial court’s

record, the appellate court may act appropriately to

ensure that the appellant’s rights are protected,

including initiating contempt proceedings against

appellant’s counsel. If the trial court has found that

the appellant no longer desires to prosecute the appeal,

or that the appellant is not indigent but has not made

the necessary arrangements for filing a brief, the

appellate court may consider the appeal without briefs,

as justice may require. 

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 still desires to prosecute the

appeal; 

2. whether appellant is still indigent and entitled to

appointed counsel; 

3. whether counsel for appellant has abandoned the

appeal; and 

4. whether appellant has been denied effective

assistance of counsel given his attorney's failure to

file a brief. 

 

If the trial court finds that the appellant is still indigent, the

trial court shall take such measures as may be necessary to assure

effective representation of counsel, which may include the
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appointment of new counsel. Accord Tex. R. App. P. 38.8(b) (2) &

(3). If the trial court appoints counsel for appellant, the judge

shall state the name, address, and state bar number of said counsel

in the court's findings. Moreover, the court shall further order

appellant's counsel or appointed counsel to file appellant's brief

no later than thirty (30) days after the date of the abatement

hearing. 

Upon remand, the judge of the trial court shall immediately

cause notice to be given of, and shall conduct a hearing in

accordance with provisions of Rule 38.8(b), supra, to determine the

matters stated therein and enumerated above. After the hearing,

the trial court shall cause the preparation of a supplemental

clerk’s record containing the court’s findings of fact, conclusions

of law, and such orders as the court may make and sign. Then the

trial court shall cause the supplemental clerk’s record and the

reporter’s record made at the hearing to be submitted to this Court

not later than August 31, 1998.

It is so ordered.

Per Curiam

Do not publish. Tex. R. App. P. 44.4.