Mitchell Erin Wachholtz v. State

Opinion

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

2 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.

Do not publish.