Mitchell Erin Wachholtz v. State

NO. 07-08-0459-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 19, 2009
______________________________
MITCHELL E. WACHHOLTZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 364th DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-416930; HON. BRADLEY S. UNDERWOOD, PRESIDING
_______________________________
ON ABATEMENT AND REMAND
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Mitchell E. Wachholtz (appellant) appeals from his conviction for murder. He filed
his notice of appeal on November 14, 2008. The clerk’s record was filed on December 22,
2008, the reporter’s record on December 29, 2008. Appellant’s brief was due on January
28, 2009. Neither a brief nor a motion for extension was filed by that date with the court.
On February 4, 2009, the court sent a letter to appellant notifying him that the brief was
overdue and that the brief or response was due on February 17, 2009. To date, no brief
or extension motion has been filed.
Consequently, we abate the appeal and remand the cause to the 364th District
Court (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;
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
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record to be filed with the clerk of this court on or before March 23, 2009. Should
additional time be needed to perform these tasks, the trial court may request same on or
before March 23, 2009.
It is so ordered.
Per Curiam
Do not publish.
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