Patricia Lynn Kyles v. State

• Court: Court of Appeals of Texas
• Decided: February 4, 2003
• Docket: 07-02-00464-CR
• Status: Published

Opinion

BRIAN MILLSAP V. SHOW TRUCKS USA, INC. NO. 07-02-0464-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

FEBRUARY 4, 2003

______________________________

PATRICIA LYNN KYLES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY;

NO. 86473; HON. CHARLES D. CARVER, PRESIDING

_______________________________

ABATEMENT AND REMAND

__________________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J. ⁽¹⁾

Patricia Lynn Kyles (appellant) appeals her conviction for misdemeanor theft. The clerk's record was filed on October 15, 2002. The reporter's record was filed on December 12, 2002. Thus, appellant's brief was due on January 13, 2003. However, one was not filed on that date. By letter dated January 21, 2003, we notified appellant's counsel, Norman Desmarais, of the expired deadline and directed him to respond to our notification of same by Friday, January 31, 2003, or the appeal would be abated to the trial court pursuant to Tex. R. App. P. 38.8. January 31, 2003, passed without appellant submitting any response to our notice.

Consequently, we abate this appeal and remand the cause to the Criminal District Court of Jefferson County (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 desires to prosecute the appeal;

2. whether appellant is indigent; and,

3. whether appellant has been denied the effective assistance of counsel due to counsel's failure to timely file a 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 this appeal, is indigent, and was denied effective assistance of counsel, then we further direct the court 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 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 record to be filed with the clerk of this court on or before March 5, 2003. Should additional time be needed to perform these tasks, the trial court may request same on or before March 5, 2003.

It is so ordered.

Per Curiam

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

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NO. 07-10-00232-CR

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 29, 2010

BARSHA FANNER, APPELLANT

THE STATE OF TEXAS, APPELLEE

 FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

NO. 11,293; HONORABLE DAN MIKE BIRD, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ABATE AND REMAND

Appellant, Barsha Fanner, filed a notice of appeal from his conviction for aggravated assault, and sentence of forty-five years incarceration in the Institutional Division of the Texas Department of Criminal Justice.  The appellate court clerk received and filed the trial court clerk=s record on June 22, 2010, and the trial court reporter=s record was received and filed on June 24, 2010.  Thus, appellant=s brief was due on or before July 26.  Appellant did not file his brief or request an extension of time to file his brief by this deadline.  Consequently, on August 4, this Court sent appellant notice that, pursuant to Texas Rule of Appellate Procedure 38.8, failure to file his brief by August 16, may result in the appeal being abated and remanded without further notice.  On August 16, appellant filed a motion for extension of time to file appellant’s brief requesting an extension until August 23.  This motion was granted by this Court on August 16.  On August 23, appellant again filed a motion for extension of time to file appellant’s brief.  This Court denied this second motion because it failed to show good cause for the extension, and appellant was notified that his brief was due on or before September 15, and that failure to comply with this deadline may result in the appeal being abated and remanded without further notice.  As of the date of this order, appellant has failed to file his brief.

Accordingly, we now abate this appeal and remand the cause to the trial court.  See Tex. R. App. P. 38.8(b)(2).  Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, whether appellant is indigent and whether counsel for appellant has abandoned the appeal; (3) if appellant desires to prosecute this appeal, whether appellant=s present counsel should be replaced; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant=s appeal if appellant does not desire to prosecute this appeal or, if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued.  If the trial court determines that the present attorney for appellant should be replaced, the court should cause the Clerk of this Court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or newly-retained attorney. 

The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law, and recommendations and cause them to be included in a supplemental clerk=s record; (3) cause the hearing proceedings to be transcribed and included in a supplemental reporter=s record; (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk=s record or the supplemental reporter=s record; and (5) cause the records of the proceedings to be sent to this Court.  See Tex. R. App. P. 38.8(b)(3).  In the absence of a request for extension of time from the trial court, the supplemental clerk=s record, supplemental reporter=s record, and any additional proceeding records, including any orders, findings, conclusions, and recommendations, are to be sent so as to be received by the Clerk of this Court not later than October 29, 2010.