1 John T. Boyd, Chi ef Justice (Ret.), Seventh Court o f Appeals , sitting by as sign ment. T EX
. G OV ’ T C ODE A NN
. §75.0 02(a) (1) (Ve rnon S upp. 2 002). NO. 07-02-0204 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E OCTOBER 16, 2002

______________________________ KEVIN DAAW N DARNES

Appellant
v. THE STATEOF TEXAS ,

Appellee

_________________________________ FROM THE108 TH DISTRICT COURT OF POTTER COUN TY; NO. 43,144-E; HON. ABE LOPEZ, PRESIDING

_______________________________ ABATEMENT AND REMAND

_______________________________ Before QUINN and REAVIS, JJ., and BOYD, SJ. 1 Ke vin DaAw n Darnes (appellant) appeals his conviction for cap i tol murder. The clerk ’s record wasfiled on June 24, 2002, and the court reporter’s records w ere fi led o n July 12, 2002. Thus, appellant’s brief was due on August 12, 2002. How ever, one was not filed on that date. On August 12, 2002, appellant’s counsel, Kent B irdsong, filed a m otion to ext en d t he ti me to fi l e a pp el l an t’ s b ri ef , wh i ch was gr an te d, ext en di ng th e t i me to f ile s aid2

brief to Septem ber 11, 2002. On S ep te mb er 11, 2002, attorney B irdsong filed a second mot ion to ex

tend tim e to file app ellant’s br ief. The court granted the extension m otion to October 4, 2 002 , w ith t he a dm onit ion t hat failu re to co m ply with t his dea dlinewould res ult in abatem ent of the appeal pursuant to T EX . R. A PP . P. 38.8. October 4, 2002, pas sed without any response by counsel to our notice, without counsel tendering a brief, a nd without counsel filing a mo tion for extension of tim e to file a brief. Consequentl y, we abate this appeal and remand the cause to the 108 th District C ourt of Po tte r Co unt

y (t rial cour

t) f or f urt her pro cee ding s. Upo n re m and , th e tr ial c our t sh all im m edia tely

cau se 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; 2. whether appellant is indigent; and, 3. whether

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

, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35, 83L. Ed. 2d 821, 828 (1985) (holding that an indigent defenda nt is enti tled to the eff ective assistance of

counsel on the first appeal as of right and that co unsel must be available to assist in preparing and submitting an ap pellate brief). We further direct the trial court to issue findings of fa ct and conclusions of law addressing thefor

ego ing s ubj ects. Sh ould thetria l c ourt find t hat appellant desires to pursue this

app eal, is in digen t, an d wa s de ni ed ef fe ct iv e a ssi st an ce of

cou ns el , th en we further direct the court to appoint new cou nse l to ass ist in th e pr ose cut ion of th e ap pea l. The na me, ad dr es s, ph on e n umb er , te le fa x numbe r, and state bar num ber of the new counsel w ho will rep res ent app ellan t on app eal m ust alsobe in clud ed in the court’s findings3

of fact a nd conc lusions of law. Furtherm ore, th e trial court shall also cause to be developed: 1) a supplem ental clerk’s record containing the findings of fact and conc lusions of law and 2) a reporte r’s record transcribing the evidence and argum entpresented at the aforem entioned hearing. Additionally, the trial court shall cause the suppl emental clerk’s record to be filed with the clerk of this court on or bef or e Novem ber

18, 200 2. S hou ld additional time be needed to perform these tasks, the trial court may request sam e on or before Novem ber 18, 2002. It is so ordered. Per Curiam
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