NO. 07-07-0500-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MAY 14, 2008

______________________________

MILES B. HORTON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

                                    _________________________________

FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

NO. 2007-443,823; HON. DRUE FARMER, PRESIDING

_______________________________

ON ABATEMENT AND REMAND

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Miles B. Horton (appellant) appeals from his conviction for driving while intoxicated. He filed his notice of appeal on December 19, 2007. The clerk’s record was filed on February 19, 2008, and the reporter’s record on February 1, 2008. However, the appeal was abated to the trial court on February 28, 2008, because appellant had not signed the trial court certification. The amended certification and supplemental record were filed on March 14, 2008. On March 17, 2008, counsel for appellant filed a motion for extension of time to file a brief, which was granted to April 21, 2008. No brief or extension was filed with the Court. On April 28, 2008, a letter was sent to appellant’s attorney notifying him the brief was overdue and that the brief or response was due on May 8, 2008. To date, no brief or extension motion has been filed in this Court.

           Consequently, we abate the appeal and remand the cause to the County Court at Law No. 2 (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:

          1.       whether appellant is indigent;

          2.       whether appellant desires to prosecute the appeal; and

3. whether appellant has been denied the effective assistance of counsel due to appellate counsel’s failure to timely file an appellate brief. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35, 83 L. Ed.2d 821, 828 (1985) (holding that an indigent defendant is entitled to the effective assistance of counsel on the first appeal as of right and that counsel must be available to assist in preparing and submitting an appellate brief).

          We further direct the trial court to issue findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court find that appellant desires to pursue the appeal, is indigent, and has been denied effective assistance of counsel, we further direct it to appoint new counsel to assist in the prosecution of the appeal. The name, address, phone number, telefax number, and state bar number of the new counsel, if any, who will represent appellant on appeal must also be included in the court’s findings 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 conclusions of law and 2) a reporter’s record transcribing the evidence and argument presented at the aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk’s record to be filed with the clerk of this court on or before June 13, 2008. Should additional time be needed to perform these tasks, the trial court may request same on or before June 13, 2008.

          It is so ordered.

                                                                           Per Curiam

Do not publish.