Donnie Yvette Anderson v. State

• Court: Court of Appeals of Texas
• Decided: September 6, 2000
• Docket: 07-00-00149-CR
• Status: Published

Opinion

NO. 07-00-0149-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 6, 2000

______________________________

DONNIE YVETTE ANDERSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 179^TH DISTRICT COURT OF HARRIS COUNTY;

NO. 793120; HONORABLE MELODY M. WILKINSON, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

ABATEMENT AND REMAND

Upon a plea of guilty for possession of a controlled substance, on January 26, 1999, appellant was granted deferred adjudication for two years and placed on community supervision for four years. Then, upon the State's second amended motion to adjudicate guilt, the court found that appellant had violated the conditions of community supervision and adjudicated him guilty. Appellant filed a "motion to appeal" and requested the appointment of counsel to represent him on appeal. Both the clerk's record and the reporter's record have been filed. Appellant's brief was due to be filed no later than July 17, 2000, but has yet to be filed. Also, no motion for extension of time has been filed. By letter dated August 16, 2000, this Court notified appellant's counsel, Ms. Cheryl E. Irvin, of the defect and also directed that Ms. Irvin explain to this Court by August 29, 2000, why the brief was not filed. Ms. Irvin did not respond and the brief remains outstanding.

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

4. whether appellant has been denied effective assistance of counsel given his attorney's failure to file a brief.

The trial court shall cause the hearing to be transcribed. Should it be determined that appellant desires 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 Monday, November 6, 2000.

It is so ordered.

Per Curiam

Do not publish.