NO. 07-06-0065-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D AUGUST 8, 2006

______________________________ FRANCISCOMURO, JR ., Appellant

v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 108 TH DISTRIC T COURT O F POTT ER COUNTY; NO. 51,418-E; HON. ABE LOPEZ, PRESI DING

_______________________________ ABATEMENT AND REMAND

__________________________________ Before QUINN, C.J., and REAVIS an d CAMPBELL, JJ. Francisco Muro, Jr. (appellant) appeals his conviction for possession of a controlled substance. His appell ate counsel req uested, on June 14, 2006, an extension of ti me to file the brief, stating that counsel onl y recentl y receiv ed access tothe reporter’s record. The extension was granted unti l July 3 , 2006. On July 5, 2006, appellant ’s counsel requested
a second extension, stating that due to trial schedule and other pendin g appellate matters, he had been unable to adequately prepare a brief. This r equest was also gr

anted, and the2

deadline was ex

tended to July

31, 2006. However, counsel w as also admonishe d that no further extensions

would be g ranted. So too w as he told that the failure to comp ly with this deadline would re sult in the abatement and remand of the appeal . Instead, couns el for appellant asked that the deadline again be ex tended until Aug ust 31, 2006. Cons eque ntly, we abate theappeal and remand thecause to the 108 th District Court of Potter County (trial court) for further proceed ings. Upon remand, the tri al court s hall immediately caus e not ice of a h eari ng to be g iv en an d, th erea ft er, c onduct a hearing to determ ine the followin g: 1. whether appel lant desiresto prosecute t he appeal; and 2. whether appe llan t has been deni ed th e ef fec tive assistance o f counsel due to appellate counsel’s failure to timely file appe lla te br ief. See Evitts v. Luc

ey , 469 U.S. 387 , 394, 105 S.Ct. 830, 834-3 5, 83 L.Ed.2d 821, 828 (1985) (holding that an indigent def endant is entitled to the effecti ve assis tan ce of counsel on the first appeal as of right and that counsel mus t be avai lable to assi st in prepar ing and submitting an appellate brief ).
We further direct the trial court to issue fin dings o f fact and conclusi ons of law
a ddres sing the foregoing subjects. S hould the trial court find that ap pellant desir es to pursue the appeal, is indigent, and has been denied effective assistance of co unse l, we further direct i t to appoint new counsel to assi st in the pros ecution of the appeal. The name, address, phone number, telefax number, and state bar number of the ne w counsel, if any, who will represent appellant on appeal must also be includ ed in the court’s findin gs of fact and conclusions of law. Furthermore, the trial court shall also cause to be developed 1) a supplemental clerk’s record containing the findings of fact and conclusi ons of law and 2) a reporter’s record transcribing the evidence and argument pr esented at the3

aforementioned hearing. Additionally, the trial court shall cause the supplemen tal clerk’s record to be filed with the clerk of this co urt on or before Septem ber 7, 2006. Should additional time be needed toperfor m thesetasks , the t rial court may r eques t same on or before September 7, 2006. It is so or

dered. Per Curiam Do not publish

.