NO. 07-03-0392 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C NOVEM BER 12, 2003

______________________________

RAUL HERRERA, Appellant
v. THE STATEOF TEXAS , Appellee

_________________________________ FROM THE 242 ND DISTRICT COURT OF CASTRO COUNT Y; NO. 906455997X; HON. ED SELF, PRESIDING

_______________________________ ABATEMENT AND REMAND

__________________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ. Ra ul Herr era (appellant) appeals his conviction for possession of a controlled substan ce over four gram s but under 200 gram s. The clerk’s record w as filed on Septem ber 15, 2003, and thesupplemental clerk’s record on Septem ber 17, 2003. The reporter’s re co rd wa s filed on August 27, 2003. Thus, appellant’s brief was due on October 17, 200 3. H oweve r, o ne w as n ot f iled o n th at d ate . O n Oc tob er 2 7, 2 003 , th is Court not ified cou nse l f

or app ellan t th at n eith er t he b rief nor an extens ion of tim e tofile2

appell ant’s brief had been filed. Counsel for appellant was also adm onis hed tha t if appell ant’s brief was not f iled by Novembe r 6, 2003, the appeal would be abated to the trial court. That date has lapsed, and appellant still has yet to file a brief. Consequentl y, we abate this appeal and remand the cause to the 242 nd District Court of Castro 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. 38 7, 394, 105 S.Ct. 83 0, 834-35, 83 L.Ed.2d 821, 828 (1985) (holding that a n i ndig 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 10, 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 10, 2003. It is so ordered. Per Curiam Do not publish.