Jesus Perales v. State

NO. 07-08-0196-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 14, 2008

______________________________

JESUS PERALES, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 371 ST DISTRICT COURT OF TARRANT COUNTY;

NO. 1067039D; HON. MOLLIE WESTFALL, PRESIDING

_______________________________

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

ON ABATEMENT AND REMAND

Appellant, Jesus Perales appeals his conviction for the offense of aggravated assault causing bodily injury and sentence of 40 years confinement in the Institutional Division of the Texas Department of Criminal Justice.  We abate for further proceedings.

Appellant's brief was due to be filed no later than October 16, 2008, but has yet to be filed.  Appellant’s attorney of record was notified by letter dated October 23 that, unless a brief or motion was received by November 3rd, this court would abate the appeal to the trial court.  Appellate counsel has not filed a brief or had further communication with this court.

Therefore, we now abate this appeal and remand the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3).  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;

1. whether the trial court appointed counsel for appellant has abandoned the appeal; and

1. whether appellant has been denied effective assistance of counsel given the attorney’s failure to file a brief.

    The trial court shall cause a hearing to be transcribed.  Should it be determined that appellant does want to continue the appeal and is indigent, then the trial court shall also take such measures as may be necessary to assure appellant effective assistance of counsel, which measures may include the appointment of new counsel.  If new counsel is appointed, the name, address, telephone number, and state bar number of said counsel shall be included in the order appointing new counsel.  Finally, the trial court shall execute findings of fact, conclusions of law, and such orders as the court may enter regarding the aforementioned issues and cause its findings and conclusions to be included in a supplemental clerk's record.  A supplemental record of the hearing shall also be included in the appellate record.  Finally, the trial court shall file the supplemental clerk's record and the supplemental reporter's record with the Clerk of this Court by December 15, 2008.

It is so ordered.

Per Curiam

Do not publish.