Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Aucencio Castro Alvarez, appellant, has filed a motion to dismiss this appeal because a Motion for New Trial was granted by the trial court. No decision of this Court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed. Tex. R. App. P. 42.1(a)(1). All costs of this appeal are assessed to the appellant. No motion for rehearing will be entertained and our mandate will issue forthwith.

Mackey K. Hancock

Justice

anded on May 9, 2001. Following a hearing, the trial court found that appellant is indigent and desires to prosecute his appeal. Mr. Richard Forcum was appointed new appellate counsel, and on August 2, 2001, an extension of time was granted in which to file appellant's brief until August 29, 2001. The brief has yet to be filed and no further motion for extension of time has been filed. By letter dated October 8, 2001, this Court notified Mr. Forcum of the defect and also directed him to explain to this Court by October 18, 2001, why the brief was not filed. Mr. Forcum did not respond and the brief remains outstanding.

Therefore, we now abate this appeal a second time and remand the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure. 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 and entitled to new appointed counsel;

3. whether counsel for appellant has abandoned the appeal; and

4. whether appellant has been denied effective assistance of counsel given his attorney's failure to file a brief.

The trial court shall cause the hearing to be transcribed. Should it be determined that appellant desires to continue the appeal and is indigent, then the trial court shall also take such measures as may be necessary to assure appellant effective assistance of counsel, which measures may include the appointment of new counsel. If new counsel is appointed, the name, address, telephone number, and state bar number of said counsel shall be included in the order appointing new counsel. Finally, the trial court shall execute findings of fact, conclusions of law, and such orders as the court may enter regarding the aforementioned issues, and cause its findings and conclusions to be included in a supplemental clerk's record. A supplemental record of the hearing shall also be included in the appellate record. Finally, the trial court shall file the supplemental clerk's record and the supplemental reporter's record with the Clerk of this Court by Friday, December 28, 2001.

It is so ordered.

Do not publish.