Preston White v. State

• Court: Court of Appeals of Texas
• Decided: August 20, 2002
• Docket: 07-02-00190-CR
• Status: Published

Opinion

NO. 07-02-0190-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 20, 2002

______________________________

PRESTON J. WHITE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2002-439262; HONORABLE JIM BOB DARNELL, JUDGE

_______________________________

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

ABATEMENT AND REMAND

Pursuant to a plea of guilty, appellant Preston J. White was convicted of injury to a

child and punishment was assessed at life imprisonment. Appellant timely filed a pro se

notice of appeal pursuant to Rule 25.2(b)(3)(B) of the Texas Rules of Appellate Procedure.

Both the clerk’s record and reporter’s record have been filed. By order of the trial court, David Guinn was appointed to represent appellant on appeal. Appellant’s brief was due

to be filed on June 24, 2002, but has yet to be filed. Also, no motion for extension of time

has been filed. By letter dated July 23, 2002, this Court notified Mr. Guinn of the defect

and also directed that he explain by August 5, 2002, why the brief has not been filed. Mr.

Guinn did not respond and the brief remains outstanding.

Therefore, 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) 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 remains entitled to appointed counsel; 3. whether appointed counsel 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, 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,

2 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 Friday, October 4, 2002.

It is so ordered. Per Curiam

Do not publish.