Christopher Evan Hefner v. State ( 2003 )

NO. 07-03-0325-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
NOVEMBER 5, 2003
______________________________
CHRISTOPHER EVAN HEFNER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;
NO. 8938; HON. WILLIAM D. SMITH, PRESIDING
_______________________________
ABATEMENT AND REMAND
__________________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
Christopher Evan Hefner (appellant) appeals his conviction for enticing a child. The
court received the complete appellate record by August 14, 2003. Thus, appellant’s brief
was due on September 14, 2003. However, one was not filed on that date. Instead,
counsel for appellant moved to extend the deadline, and the latter was extended to
October 13, 2003. Rather than file a brief on that date, counsel for appellant again moved
for an extension, and we then extended the briefing deadline to November 3, 2003. Before
us is a third motion requesting an additional extension. Furthermore, the reason proffered
to justify it is akin to those used to obtain the prior extensions; that is, counsel for appellant
represents that he has not had the time to research or complete the research “on the legal
issue in this case.”
Consequently, we abate this appeal and remand the cause to the 84th District Court
of Hutchinson 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;
3. whether counsel for appellant has abandoned the appeal;
4. 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); and,
5. whether the appellant should be appointed new counsel on
appeal.
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, and has been denied effective assistance of counsel, or
if it is determined that counsel has abandoned the appeal, then we further direct the court
2
to appoint new counsel to represent appellant in 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 December 5, 2003. Should
additional time be needed to perform these tasks, the trial court may request same on or
before December 5, 2003.
It is so ordered.
Per Curiam
Do not publish.
3