NO. 07-03-0534-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 16, 2004

______________________________

MATTHEW TYLER BERRY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

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FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

NO. 103,625; HONORABLE PAMELA C. SIRMON, JUDGE

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Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Matthew Tyler Berry filed a Motion to Dismiss Appeal on January 13, 2004, averring that he no longer wishes to prosecute his appeal.   The Motion to Dismiss is signed by both appellant and his attorney.  

Without passing on the merits of the case, appellant’s motion for voluntary dismissal is granted and the appeal is hereby dismissed.  Tex. R. App. P. 42.2.   Having dismissed

the appeal at appellant’s personal request, no motion for rehearing will be entertained and our mandate will issue forthwith.  

Phil Johnson

    Chief Justice

Do not publish.

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ABATEMENT AND REMAND

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

Upon a plea of not guilty, Truman Tommy Matthews (appellant) was convicted by a jury of murder and sentenced to life imprisonment in the Texas Department of Criminal Justice, Institutional Division.  Appellant subsequently appealed the conviction.  The record of the court clerk was filed on April 16, 2001 and the reporter’s record is due on May 18, 2001.  On May 2, 2001, we received a letter dated April 29, 2001, from the court reporter informing this Court that neither appellant nor anyone on his behalf has made financial arrangements for the preparation of the reporter’s record.

Accordingly, we now 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;

2.  whether appellant is indigent, entitled to the appointment of counsel; and

3.  whether the appellant is entitled to the preparation of a free reporter’s record.

The trial court shall cause the hearing to be transcribed.  Furthermore, the trial court shall  execute findings of fact and conclusions of law answering the aforementioned issues and cause same to be included in a supplemental clerk’s record.  Finally, the trial court shall file the supplemental clerk’s record and the transcription of the hearing with the Clerk of this Court by June 4, 2001.  Should further time be needed by the trial court to perform these tasks, then same must be requested before June 4, 2001.

It is so ordered.

                                        Per Curiam

Do not publish.