Joe Lee MacKey v. State

Opinion

NO. 07-97-0373-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 29, 1998

______________________________

JOE LEE MACKEY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

ABATEMENT AND REMAND _______________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 97-424181; HONORABLE JIM B. DARNELL, JUDGE

_______________________________

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

From a not guilty plea, appellant Joe Lee Mackey, was

convicted of possession with intent to deliver more than four grams

but less than 200 grams of cocaine. The jury assessed his

punishment at fifteen years confinement in the Texas Department of

Criminal Justice, Institutional Division. Appellant timely filed

his notice of appeal. The clerk’s record was filed on December 30, 1997, and the

reporter’s record was filed on January 29, 1998. Appellant is

represented by appointed counsel in this appeal. We granted

appointed counsel three extensions to file appellant’s brief, the

last being due on May 26.

On July 8, this Court informed the district attorney and

appellant that the appellant’s brief was due on May 26, and yet no

brief had been filed. The Court further advised them that the

appeal would be abated and the cause remanded for a factual hearing

unless appellant filed with this Court, within ten (10) days, a

response satisfactorily explaining the absence of the brief. Tex.

R. App. P. 38.8(b). No such response has been received.

Accordingly, we abate the appeal and remand the case to the

trial court for proceedings under Rule 38.8(b). In pertinent part,

this rule provides:

(1) Effect. An appellant’s failure to timely file a brief does not authorize either dismissal of the appeal or, except as provided in (4), consideration of the appeal without briefs. (2) Notice. If the appellant’s brief is not timely filed, the appellate clerk must notify counsel for the parties and the trial court of that fact. If the appellate court does not receive a satisfactory response within ten days, the court must order the trial court to immediately conduct a hearing to determine whether the appellant desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether retained counsel has abandoned the appeal, and to make appropriate findings and recommendations. (Emphasis added).

-2- (3) Hearing. In accordance with (2), the trial court must conduct any necessary hearings, make appropriate findings and recommendations, and have a record of the proceedings prepared, which record--including any order and findings--must be sent to the appellate court. (4) Appellate court action. Based on the trial court’s record, the appellate court may act appropriately to ensure that the appellant’s rights are protected, including initiating contempt proceedings against appellant’s counsel. If the trial court has found that the appellant no longer desires to prosecute the appeal, or that the appellant is not indigent but has not made the necessary arrangements for filing a brief, the appellate court may consider the appeal without briefs, as justice may require.

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 still desires to prosecute the appeal; 2. whether appellant is still 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.

If the trial court finds that the appellant is still indigent, the

trial court shall take such measures as may be necessary to assure

effective representation of counsel, which may include the

appointment of new counsel. Accord Tex. R. App. P. 38.8(b) (2) &

(3). If the trial court appoints counsel for appellant, the judge

shall state the name, address, and state bar number of said counsel

-3- in the court's findings. Moreover, the court shall further order

appellant's counsel or appointed counsel to file appellant's brief

no later than thirty (30) days after the date of the abatement

hearing.

Upon remand, the judge of the trial court shall immediately

cause notice to be given of, and shall conduct a hearing in

accordance with provisions of Rule 38.8(b), supra, to determine the

matters stated therein and enumerated above. After the hearing,

the trial court shall cause the preparation of a supplemental

clerk’s record containing the court’s findings of fact, conclusions

of law, and such orders as the court may make and sign. Then the

trial court shall cause the supplemental clerk’s record and the

reporter’s record made at the hearing to be submitted to this Court

not later than August 31, 1998.

It is so ordered.

Do not publish. Tex. R. App. P. 44.4.

-4-