Juan Ramirez v. State ( 2001 )

NO. 07-00-0148-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 8, 2001

______________________________

JUAN RAMIREZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 337TH DISTRICT COURT OF HARRIS COUNTY;

NO. 800647; HON. DONALD STRICKLIN, PRESIDING

_______________________________

ABATEMENT AND REMAND

_______________________________

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

Juan Ramirez appeals a conviction for possession of a controlled substance with intent to deliver.   The clerk’s record in this cause was filed with this Court on March 13, 2000.  The reporter’s record was filed on October 3, 2000.  Thus, the appellant’s brief was due on November 2, 2000.  Approximately three weeks after the deadline passed, appellant’s counsel moved for an extension of time in which to file appellant’s brief citing his work load as justification for the extension.  Although the motion failed to comply with Texas Rule of Appellate Procedure 10, we granted an extension to December 4, 2000, as requested by appellant.   

December 4 th passed without our receiving either an appellant’s brief or a motion for extension of time in which to file said brief.  Rather, as before, appellant again waited approximately three weeks after expiration of the deadline to seek another extension.  As before, the motion failed to comply with Rule 10 and, as before, appellant’s counsel attempted to justify the delay by stating that he was too busy with other matters to draft the brief.

Accordingly, we abate and remand this appeal to the 337th District Court of Harris County, Texas (district court), and order the district court to immediately notice and conduct a hearing to determine 1) whether appellant desires to prosecute this appeal, 2) whether appellant’s counsel has denied his client effective assistance because of counsel’s inability to file a timely brief, and 3) whether appellant is entitled to new counsel.   We further direct the district court to issue findings of fact and conclusions of law addressing the foregoing subjects and, if new counsel is appointed, disclosing the name, address, state bar number, and telephone and fax numbers of the new counsel.  The district court shall also cause to be developed 1) a supplemental clerk’s record containing the findings of fact and conclusions of law and all orders of the district court issued as a result of its hearing on this matter, and 2) a reporter’s record transcribing the evidence and arguments presented at the aforementioned hearing.  Additionally, the district court shall cause the supplemental clerk’s record to be filed with the clerk of this court on or before February 8, 2001.  Should

additional time be needed to perform these tasks, the district court may request same on or before February 8, 2001.

It is so ordered.

Per Curiam

Do not publish.