Robert Johnson v. State ( 2004 )

NO. 07-03-0433-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 18, 2004
______________________________
ROBERT JOHNSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-439339; HON. BRADLEY S. UNDERWOOD, PRESIDING
_______________________________
ABATEMENT AND REMAND
__________________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
Robert Johnson (appellant) appeals his conviction of possession of controlled
substance of less than one gram in a drug free zone. The clerk’s record was filed on
December 23, 2003, the reporter’s record was filed on November 19, 2003, and a
supplemental reporter’s record was filed on November 24, 2003. Thus, appellant’s brief
was due on January 22, 2004. However, one was not filed on that date. On February 2,
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John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2004 ).
2004, this Court notified counsel for appellant that neither the brief nor an extension of time
to file appellant’s brief had been filed. Counsel for appellant was also admonished that if
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 passed, and appellant has not filed a brief or
moved for an extension. Nor has he responded to the court’s February 2nd letter.
Consequently, we abate this appeal and remand the cause to the 364th District
Court of Lubbock County (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 desires to prosecute the appeal;
2. whether appellant is indigent and entitled to appointed counsel; 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 this appeal, is indigent, has appointed counsel, and has been denied effective
assistance of counsel, or has no counsel, then 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 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
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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 March 19, 2004. Should additional time be needed to perform these tasks, the
trial court may request same on or before March 19, 2004.
It is so ordered.
Per Curiam
Do not publish.
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