Truman Tommy Matthews v. State of Texas ( 2001 )

NO. 07-01-0147-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 6, 2001
______________________________
TRUMAN TOMMY MATTHEWS
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 155th DISTRICT COURT OF WALLER COUNTY;
NO. 98-05-9372; HON. DAN R. BECK, PRESIDING
_______________________________
ABATEMENT AND REMAND
_______________________________
Before QUINN, REAVIS, and JOHNSON, JJ.
Truman Tommy Matthews (appellant) appeals his conviction for murder. Both the
clerk’s and court reporter’s records were filed by September 20, 2001. Thus, appellant’s
brief was due on October 22, 2001. However, one was not filed on that date. By letter
dated October 26, 2001, we notified appellant’s counsel, Kristine C. Woldy, of the expired
deadline and directed her to respond to our notification of same by Monday, November 5,
2001, or the appeal would be abated to the trial court pursuant to TEX . R. APP . P. 38.8.
November 5, 2001 came and went without any response by counsel to our notice, without
counsel tendering a brief, and without counsel filing a motion for extension of time to file
a brief.
Consequently, we abate this appeal and remand the cause to the 155th District
Court of Waller 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; and
2. whether appellant is indigent;
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
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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 December 6, 2001. Should
additional time be needed to perform these tasks, the trial court may request same on or
before December 6, 2001.
It is so ordered.
Per Curiam
Do not publish.
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