1 John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeal s, si tt ing by assignment. Tex. Gov’tCode An n. §7 5.00 2(a) (1) (V erno n Su pp. 2 004 ). NO. 07-03-0433-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E FEBRUARY

18, 2004

______________________________ ROBERT JOHNSON,

Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 3 64TH DI STRICT COURT OF LU BBOCK COU NTY; NO. 2002-439339; HON. BRADLEY S. UNDERW OOD, PRESIDING

_______________________________ ABATEMENT AND REMAND

__________________________________ Before QUINN and REAVIS, JJ., an d BOYD, S.J. 1 Robert Johnson (appellant) appe als his convict ion of p ossession of contr olled sub stance of less than one gram in a drug free zone. The clerk’s record was fil ed o n December

23, 2003, the reporter’s record was file d on N ove mber 19, 2003, and a supplemental repor

ter’s reco rd wasfiled on November 24, 2003. Thus, appel lant’s bri ef
was due on January

22, 2004. However, one was not filed on that date. On Februar y 2,2

2004, this Court

notified counsel for appel lant that neither the brief nor an exte nsion of time to file appellant’ s brief had been file d. Counsel for appellant w as also admonishe d thatif appellant

did not respond to the court’s letter by February 12, 2004, the appeal would be abated to the trial court. That date has p asse d, and appe llant has not fil ed a brief or moved for an extension. Nor has he respo nded to the court’s February 2nd letter. Cons eque ntly, we abate thi s appeal and remand the cause to th e 364th District Courtof Lubbock County (trial court) for further

proceedings . Upon remand, th e trial court shall imme diately

caus e not iceof a hearing to be given and, thereafter, conduc t a hearing to dete rmine th e follo wing: 1. whether appellant desires to prosecute the appeal; 2. whether appel lant is indi gent and entitl ed to appointed couns el; and, 3. whether

appe lla nt ha s bee n den ied the e ff ecti ve assistance o f counsel due to appellate counsel’s fail ure to timely file an appel late bri ef. See Evitts

v. Lucey, 469 U.S. 387, 394 , 105 S.Ct. 830, 834-35, 83 L.Ed.2d 821, 828 (1 98 5) (holdi ng that an indigent defen dant is entitled to the effective as sistance of counse l on the first appeal as of right and that counsel must be avail able to as sist in pr eparing and submitting an appellate bri ef). We further direct the trial court to issue fin dings of fact and con clu s ions of law addressing the foregoing subjects. S hould the trial court find that ap pellant desir es to pursue this appeal, is indig ent, has a ppo inte d cou nsel , and has b een deni ed ef fec tive assistance of

counsel, or has no counsel, then we further di rect it to ap point new counsel to assist in the prosecution of the appeal. The name, address , phone number, telefax number, and state bar number of the new couns el who w ill repr esentappellant on appeal must also be included in the court’s findings of fact and conclusi ons of law. F urthermore, the trial court shall also cause to be developed 1) a supp lemental clerk’s record contai ning3

the findings of fact and conclusions of law and 2) a reporter’srecord tra n scr ibing the evidence and argument presented at the afore men tioned hearing . Additionall y, the tri al court shall cause the supplemental c lerk’s r ecord to be filed with the clerk of this court on
or before March 19, 2004. Should additiona l time be needed to perf orm these tasks, the trial cour t may req uest same on or befor e March 19, 2004

. It is so or

dered. Per Curiam Do not publish

.