NO. 07-00-0501-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JUNE 15, 2001

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RAUL GARZA,

Appellant

V.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 180 TH DISTRICT COURT OF HARRIS COUNTY;

NO. 847,303; HON. DEBBIE STRICKLIN, PRESIDING

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ABATEMENT AND REMAND

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Before QUINN, REAVIS and JOHNSON ^{(footnote: 1)}, J.J.

Raul Garza (appellant) appeals from a judgment convicting him of engaging in organized criminal activity for the purpose of committing theft of a motor vehicle.  The clerk’s record in this cause was filed with this court on December 29, 2000.   Pursuant to

appellate counsel’s representations to the trial court, ^{(footnote: 2)} no reporter’s record was made concerning the matters on appeal.  Subsequently, a supplemental clerk and reporter’s records were filed on April 18, 2001.  Thus, appellant’s brief was due on May 18, 2001.  May 18 th passed without our receiving either an appellant’s brief or a motion for extension of time to file said brief.  We notified appellant of the situation by letter, but neither a brief nor a response to our letter has been sent.

Accordingly, we abate and remand this appeal to the 180th 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 failure to timely file a brief, and 3) whether appellant is indigent and entitled to new appointed counsel (should the district court conclude that present counsel is unable to file a brief within 30 days of the hearing).  We further direct the district court to issue findings of fact and conclusions of law addressing the foregoing subjects and disclosing the name, address, state bar number, and telephone and fax numbers of any substitute counsel appointed.  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 July 18, 2001.  Should additional time be needed to perform these tasks, the district court may request same on or before July 18, 2001.

    It is so ordered.                                           

                                                                          Per Curiam

Do not publish.

FOOTNOTES

1:

Justice Johnson did not participate in the resolution of this proceeding.

2:

This matter was abated once before on January 18, 2001 for the purpose of determining whether appellant was entitled to a free reporter’s record.  During the hearing on the abatement, counsel advised the trial court that the appeal concerned pre-trial motions only and that a record was not made regarding those motions.  Thus, this second abatement, which has been caused by counsel’s disregard for the briefing deadlines and this court’s correspondence, has unduly postponed disposition of the case.