                                   NO. 07-00-0561-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  OCTOBER 29, 2001

                         ______________________________


                            GABRIEL GARZA, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 99-431453; HONORABLE CECIL G. PURYEAR, JUDGE

                         _______________________________

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


                        SECOND ABATEMENT AND REMAND


      Pursuant to a plea of guilty, appellant Gabriel Garza was convicted of burglary of

a habitation with intent to commit theft and punishment was assessed at ten years

confinement, probated for five years. Upon the State’s application, community supervision

was revoked for violations of the terms and conditions thereof, and the original punishment
of ten years confinement was imposed. Both the clerk’s record and reporter’s record have

been filed. This appeal was abated and the cause remanded 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


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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.
                                                   Per Curiam




Do not publish.




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