NO. 07-01-0147 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C NOVEM BER 6, 2 001

______________________________ TRUMAN TOMMY MATTHEW S Appellant
v. THE STATEOF TEXAS , Appellee

_________________________________ FROM THE155 th DISTRICT COURT OF W ALLER COUNT Y; NO. 98-05-9372 ; HON. DAN R. BECK , PRESIDING

_______________________________ ABATEMENT AND REMAND

_______________________________ Before QUINN, REAVIS, and JOHNSON, JJ. Truman Tommy Matthew s (appellant) appeals his conviction for m urder. Both the clerk’s and court repor ter’s recordswer e filed by September 20, 2001. Thus, appel lant’s brief was dueon October 22 , 2001. How ever, one was not filed on that date. B y letter dated October 26, 2001, w e notified appell ant’s counsel, Kri stine C. W oldy, of the exp ired deadline and directed her to respond to our notification of sam e by Monday, Novem ber 5, 2001, or the appeal would be abated to t he t rial court pursuant to T EX . R. A PP . P. 38.8.2

Novem ber

5, 2001 cam e and went without any response by coun sel to our notice, without counsel tendering a brief, and without cou nsel filin g a m otio n fo r ex ten sion of t im e tofile a brief. Consequentl y, we abate this appeal and remand the cause to the 155 th Distri ct Court of W alle r County (tri al court) for further pr oceeding s. Upon r em and, th e trial court sha ll imm ediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determ ine the following: 1. whether appellant desires to prosecute the appeal; and 2. whether appellant is indigent; 3. whether

appellant has been denied the effective assistance of counsel due to cou nse l’sfailu re to tim ely f ile 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 d efendant is entitled to the effective assistance of counsel on the first appeal as of right and that counse l m ust be a vaila ble to as sis t in preparing and subm itting an appellate brief). We further di rect the tri al court to i ss ue findi ngs of fact and conclusions of law addressing the foregoing subj ects. Should t he tr ial court find that appellant desires to pur suethis app eal, is in di ge nt , a nd was d en ie d e ff ec ti ve ass is ta nc e o f co un se l, th en we further direct the court to appoint new counsel to assist in the prosecution of t he a ppe al. The nam e, addres s, phone num ber, telefax num ber, and state bar num ber of the new counsel who w ill rep resent appe llan t on appeal must also be includ ed in the cour t’s findings of

fa ct an d co nc lu si on s ofla w. Furtherm ore, the trial court shall also cause to be3

developed: 1) a supplemental cl erk’s record conta inin g the findi ngs of fact and conclusions of law and 2) a reporte r’s record tran scribi ng the evide nce and argum ent presented at the aforem entioned hearing. Additionally, the trial court shall cause the supplemental cl erk’s record to be filed with the clerk of this cou rt on or be for e De cem ber

6, 2 001 . S hou ld additional time be needed to perfor m these tasks, the trial co urtma y request sam e on or before Decem ber 6, 2001. It is so ordered. Per Curiam

Do not publish.