IN THE

TENTH COURT OF APPEALS

No. 10-97-049-CR

No. 10-97-081-CR

No. 10-97-082-CR

     TRINITY GONZALEZ,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the Criminal District Court No. 2

Dallas County, Texas

Trial Court ## F96-00264-JI; F95-75475-TI; F96-00263-JI

OPINION ON

SUA SPONTE ABATEMENT OF APPEAL

      According to information provided to us by the District Clerk, the appellant, Trinity Gonzalez, was convicted on a single count of murder and two counts of aggravated assault. Tex. Penal Code Ann. §§ 19.02, 22.02 (Vernon 1994). On December 12, 1996, Gonzalez was sentenced to life imprisonment on the murder conviction and twenty years' incarceration on each of the aggravated assault convictions. Gonzalez filed notices of appeal and motions for new trial that same day for all three convictions.

      Neither a transcript nor a statement of facts has been filed in this case. On April 17, 1997, our clerk notified Gonzalez that the transcript had not been filed and that he "must file either the transcript, a motion for extension of time to file the transcript, or a response setting forth an adequate explanation as to why the transcript is not yet due within fifteen days of the date of this letter or this cause will be abated to the trial court for a hearing to determine why the transcript has not been filed." On April 21 Gonzalez filed a motion to extend the time to file the statement of facts, but no similar request was made for the transcript. We granted Gonzalez's motion on April 23, extending the time to file the statement of facts until July 31, 1997, and in the order we noted that the transcript was yet to be filed. Despite this notice, Gonzalez has to this date failed to file the transcript or a motion requesting an extension of time to file the same.

      Therefore, this appeal is abated and the trial court instructed to conduct a hearing to determine: (1) why the transcript has not been filed; (2) whether Gonzalez desires to proceed with the appeal; (3) whether Gonzalez is now indigent; and (4), if Gonzalez is not indigent, whether he has failed to make necessary arrangements for filing the transcript. Id. 53(m), 74(l)(2), 83. If Gonzalez no longer wishes to pursue an appeal, he and his counsel must sign and file a motion to dismiss, expressly requesting withdrawal of his notice of appeal and dismissal of this proceeding. Id. 59(b).

      If Gonzalez is indigent, the trial court shall take such measures as may be necessary to assure effective representation of counsel, which may include the appointment of new counsel. Id. 53(m), 74(l)(2). However, if he desires to proceed pro se, the trial court is directed to determine, on the record, his ability and capacity to knowingly and intelligently waive his right to counsel. Hathorn v. State, 848 S.W.2d 101, 122-23 (Tex. Crim. App. 1992); Ex parte Davis, 818 S.W.2d 64, 66-68 (Tex. Crim. App. 1991). A knowing and voluntary waiver of his right to counsel should appear on the record.

      The trial court shall forward a record of the hearing, with its findings of fact and conclusions of law, to the clerk of this court within twenty-one days of the date of this order.

                                                                                     PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Appeal abated

Opinion issued and filed May 14, 1997

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