Dustin Merle Whaley v. State, 07-16-00126-CR

Appellant Dustin Merle Whaley was convicted of evading arrest or detention with a vehicle (third-degree felony), sentenced to six years and fined $500.
Appellant’s court‑appointed counsel (L. Van Williamson) failed to timely file an appellant’s brief despite court reminders and an extension warning.
The appellate court notified counsel on September 15, 2016, granting a short extension and warning that failure to comply would result in abatement and remand.
Counsel did not file the brief or a motion for extension; he later told the court he had not been paid and would consult the trial judge before seeking an extension.
The appellate court abated the appeal and remanded to the trial court to determine why counsel failed to file the brief and to take steps (including a hearing) to ensure the brief is filed or new counsel appointed.
The trial court must hold a hearing (if brief not filed by a set date) to decide whether Whaley wants to proceed, whether current counsel has abandoned the appeal, and whether Whaley is indigent and entitled to appointed counsel; findings and orders must be filed as a supplemental clerk’s record.

Issue	Whaley's Argument	Opposing Argument	Held
Whether the appeal should be abated/remanded for counsel’s failure to file a brief	Whaley wants the appeal prosecuted and an appellate brief filed	Counsel has not complied with appellate deadlines; court must act to protect Whaley’s appellate rights	Court abated the appeal and remanded for the trial court to determine cause and ensure briefing occurs
Whether trial court must determine if counsel abandoned the appeal and appoint new counsel	Whaley would be entitled to new counsel if current counsel abandoned the appeal	Trial court must assess abandonment before appointing new counsel	Trial court ordered to hold a hearing to determine abandonment and appoint new counsel if appropriate
Whether counsel must file the appellant’s brief or be removed	Whaley’s appeal cannot proceed without a brief; he needs effective assistance of counsel	Court can require appointed counsel to file or replace him	If Mr. Williamson remains, he is ordered to file the brief instanter; otherwise new counsel will be appointed and given time to file
Whether indigent defendant is entitled to effective appellate counsel	Whaley, if indigent, is entitled to appointed counsel to provide effective assistance on appeal	State/trial court must ensure constitutional right to counsel is satisfied	Trial court must determine indigence and, if indigent, appoint counsel and supply counsel’s contact info to the appellate court

Guillory v. State, 557 S.W.2d 118 (Tex. Crim. App. 1977) (trial court must ensure appointed counsel files an appellate brief; duty to provide effective assistance on appeal)
Douglas v. California, 372 U.S. 353 (U.S. 1963) (indigent defendants are entitled to counsel on first appeal as of right)