NO. 07-03-0396 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L B NOVEM BER 26, 2003

______________________________ KEVIN M. McELROY,

Appellant
v. THE STATEOF TEXAS , Appellee

_________________________________ FROM THE 36 4th DIST RICT COURT OF LUBBOCK COUN TY; NO. 2002-40031 8; HON. BILLY JOHN EDWARDS, PRESIDING

_______________________________ ABATEMENT AND REMAND

__________________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ. Ke vin M . M cE lroy

(ap pella nt)app ealshis conviction for possession of anhydrous
am m oniawi th i nt en t t o u nl aw fu l l y ma nufact ure a c ont rolle d su bstance, n am ely met h amphe tam ine. The clerk’s re cord was filed on October 6, 2003, an d the reporter ’s record was f

iled on October 2, 2003. Thus, appellant’s brief was due on Novem ber 5, 2003. How

ever, onew as n ot f

iled o n th at d ate . O n Novem ber 12, 200 3, t his Court notified counsel for appellant that neither the brief nor an exte nsion of time to file appellant’s brief2

had been filed. Counsel for app ellan t was a lso a dm onis hed tha t if appellant’s brief was not filed by Novem ber 24, 2003, the appeal w ould be abated to the trial court. That date has passed, and appellant has not f iled a brief or moved for an ex tension. C onse quently, we abate this appeal and remand the cause to the 364th Di strict Court of Lubbock County

(trial court) for further proceedings. Upon re m 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. w het her

app ellan t de sire s topro sec utetheapp eal; 2. whether appellant is indigent and entitled to appointed counsel; and, 3. wh etherappellant has been denied the effective assistance of counsel due to appellate counsel’s failure to timely file an appellate brief. See Evi

tts v. Lucey

, 469 U.S. 387, 394, 105 S. C t. 830, 834-35, 83 L. Ed. 2d 821, 828(19 85)(ho lding tha t an indig ent def end ant is entitled to the effective assistance of counsel on the first appeal as of right and that counsel must be a vaila ble to assist in preparing and subm itting an appellate brief). We further direct the trial court to issue finding s of fact an d conclusions of law addressing thefor

ego ing s ubj ects. Sh ould thetria l cou rt f ind t hat app ell ant d esires to pursue this appeal, is indigent, and has been denied effective ass istance of counsel, then
we further direct the court to appoint new counsel to assist in the prosecution of the app eal. The nam e, addre ss, ph one num ber, telef ax n um ber, and state bar num ber of the
new cou nse l w ho will represent app ella nt on appeal must also be includ ed in the cour t’s findings of fact and conc lusions of law. Furtherm ore, the trial court shall also cause to be developed 1) a supplemental cl erk’s record containing the findings of fact and conc lusions of law and 2) a reporter’s record transcribing the evidence and argum ent presented at the3

aforem entioned hearing . Addition ally, the trial court shall cause the supplem ental clerk’s record to b e file d w ith t he c lerk of t his cour

t on or b efo re D ece m ber 23, 200 3. S hou ld additional time be ne eded to perform these tasks, the trial court may request sam e on or before Decem ber 23, 2003. It is so ordered. Per Curiam Do not publish.