NO. 07-01-0434 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D FEBRUA RY 21, 2002

______________________________

ANTONE R ICHIE Appellant
v. THE STATE OF TEXAS , Appellee

_________________________________ FROM THE 180 th DISTRICT COURT OF HARRIS COUNTY; NO. 857,643; HON. LARRY FULLER, PRESIDING

_______________________________ ABATEMENT AND REMAND

_______________________________ Before BOYD, C.J. QUINN, and REAVIS, JJ Antone Ric hie appealed, on May 24, 2001, his conviction for delivery of a controlled substance. Eventually, the clerk’s recor d was filed October 17, 2001 and the re porter’s record on Novem ber 27, 2001. These circum stances, w hen applied to the pertinent rule of appellate procedure, required that appellant file his bri ef by Decem ber 27, 2001. He did not. On J an ua ry 9, 20 02 , we informed appellant, by letter, of the Decem ber 27 th deadline and dire cte d him

to exp lain why he did not com ply with sam e. Sotoodid w e inf ormhim2

thatthe cause w

ould be aba ted pur

sua nt to Te xa s R ule o f A ppe llatePr oce dur e 38 .8( b) if such a response w

as not forthcom ing within ten days. The response received consisted of a m otion to extend th e deadline. Sam e wasgranted, and the deadline was extended to February 13, 2002. Like its predecesso r, that date also lapsed w ithout appellant
com plying with sa me or otherwise contacting the court and ex plaining why his brief had not been filed. Consequentl y, we abate this appeal and remand t he c ause to the 180th District Court of Harris County (trial court) for furt her proceedi ngs. Upon r em and, th e trial court sha ll imm ediately cause notice of a hearing to be served upon the part ies and, t hereafter, conduct a hearing to determ ine the following: 1. whether appellant desires to prosecute the appeal; 2. whether appellant is indigent; and, 3. whether

appellant has been denied the effective assistance of counsel due to counse l’s failure to timely file a brief. See Evi tts v. Lucey

, 469 U.S. 38 7, 394, 105 S. Ct . 830, 834-35, 83 L. E d. 2d 821, 828 (1985) (holding that an indigent defendant i s entitl ed to the effecti ve assistance o f counsel on the first appeal as of right and that cou nse l m ust be a vaila ble to as sis t in preparing and subm itting an appellate brief). The trial court is further ordered to ex ecute findings of fact and conc lusions of law addressing thefor

ego ing s ubj ects. Sh ould the trial court find that appellant desires to pursue this appeal, is indigent, and wasde ni ed ef fe ct iv e a ssi st an ce of

cou ns el , th en we also dire ct i t toapp oint new cou nse l to ass ist app ellan t in thepro sec utio n of theapp eal.3

The na me , addr ess, phone num ber, telefax num ber, and state bar num ber of the new counsel appointed to represent appellant m ust 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 supplem ental clerk ’s record containing the findings of fact and conclusions of law , and 2) a reporter’s record trans crib ing the evidence and argum ent presented at the aforem entioned hearing. Additionally, the trial co urtshall cause the supplem ental clerk’s record and rep orter’ s re cor d tobe f iled w ith t he c lerk

of t his court on or before March 25, 2002. Sh ould ad di ti on al ti me be needed to perf orm these tasks, the trial court may request
sam e on or before March 25, 2002. It is so ordered. Per Curiam

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