Fabian James Tankesly v. State

Opinion

NO. 07-02-0142-CR NO. 07-02-0143-CR NO. 07-02-0144-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 7, 2002

______________________________

FABIAN JAMES TANKESLY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 41,975-A, 41,941-A, & 41,926-A ; HONORABLE DAVID GLEASON, JUDGE

_______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.*

ABATEMENT AND REMAND

Pursuant to guilty pleas, on April 11, 2001, appellant Fabian James Tankesly was

convicted of theft over $1,500 in cause number 41,975-A, securing execution of documents

* John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. by deception over $20,000 and under $100,000 in cause number 41,941-A, and

unauthorized use of a motor vehicle in cause number 41,926-A, all state jail felonies, and

punishment was assessed at two years confinement and a $100 fine, suspended for three

years community supervision. Upon the State’s amended motion, on March 7, 2002,

community supervision was revoked for violations of three of the conditions thereof, and

the original punishment was imposed.

Proceeding in forma pauperis, appellant timely filed notices of appeal. The

appellate record was filed on May 6, 2002. After two motions for extensions of time in

which to file a brief were granted extending the deadline to August 5, 2002, a third request

was granted to September 4, 2002, with the admonition that no additional extensions

would be granted absent extreme and unusual circumstances. A fourth motion for

extension of time was filed explaining that additional time was necessary to diligently

research the record and pertinent case law to prepare a proper brief, appellate counsel

attended to family illness, and matters pending in the District Court still needed to be

addressed. The fourth request was granted extending the deadline to October 1, 2002,

with the same admonishment previously given. On October 1, 2002, appellant filed a fifth

motion for extension of time citing the same reasons as in the fourth request.

Appellant’s fifth motion for extension of time in which to file a brief is hereby denied

and we now abate the 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

2 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 new appointed counsel; and

3. whether appellant has been denied effective assistance of counsel given appellate counsel’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 Thursday, November 21,

2002.

It is so ordered. Per Curiam

3 Do not publish.