NO. 07-08-0513-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 9, 2009

______________________________

DANIEL LUIS CANCINO,

Appellant

v.

THE STATE OF TEXAS, 

Appellee

_________________________________

FROM THE 69th DISTRICT COURT OF DALLAM COUNTY;

NO. 4046; HON. RON ENNS, PRESIDING

_______________________________

ON ABATEMENT AND REMAND

_______________________________

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

Appellant appeals from his conviction for aggravated assault. The clerk’s record

was filed on December 22, 2008, and the reporter’s record on February 24, 2009.

Appellant’s brief was due on March 26, 2009. Neither a brief nor a motion for extension

was filed by that date, however. On April 2, 2009, the court sent a letter to appellant

notifying him that the brief was overdue and that it or a response was due on April 13,

2009. On April 13, 2009, appellant filed a motion for extension of time to file the brief. It
was granted, and the deadline was extended to May 11, 2009. On May 12, 2009, this

Court received appellant’s motion to withdraw as counsel, stating that “no non-frivolous

grounds for appeal” were found. The Court denied counsel’s motion to withdraw on May

20, 2009, stating “the motion to withdraw cannot be granted until counsel satisfies his

educational burdens, [and] files an Anders brief . . . The brief is due no later than Monday,

June 1, 2009.” To date, no brief has been filed.

Consequently, we abate the appeal and remand the cause to the 69th District Court

(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 is indigent; 

2. whether appellant desires to prosecute the appeal;

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 the appeal, is indigent, and has been denied effective assistance of counsel, 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 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 July 9, 2009. Should additional

time be needed to perform these tasks, the trial court may request same on or before July

9, 2009.

It is so ordered.

Per Curiam

Do not publish.