After being notified that the reporter's record was overdue, the court reporter advised the Court no arrangements for payment had been made. The Court notified appellant's retained attorney, Matthew C. Nichols, that the appeal would be submitted without a reporter's record if payment was not made. Tex. R. App. P. 37.3(c). Counsel did not respond to this notice. Accordingly, counsel was notified that his brief was due on November 10, 2008. The brief has not been received and counsel did not respond to the Court's overdue notice.

The appeal is abated. The trial court shall conduct a hearing to determine whether appellant desires to prosecute this appeal, whether appellant is indigent, and, if he is not indigent, whether retained counsel has abandoned this appeal. Tex. R. App. P. 38.8(b)(2). The court shall make appropriate findings and recommendations. A record from this hearing, including copies of all findings and orders and a transcription of the court reporter's notes, shall be forwarded to the Clerk of this Court for filing as a supplemental record no later than February 13, 2009. Rule 38.8(b)(3).

__________________________________________

Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Abated

Filed: January 21, 2009

Do Not Publish