                                  NO. 07-10-00324-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   JANUARY 20, 2011


                        JAMES CODY SULLIVAN, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 64TH DISTRICT COURT OF CASTRO COUNTY;

          NO. A3000-0504; HONORABLE ROBERT W. KINKAID JR., JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                     ORDER OF ABATEMENT AND REMAND


       Appellant, James Cody Sullivan, filed a notice of appeal from his conviction for

forgery of a financial instrument, and sentence of two years incarceration in the State

Jail Division of the Texas Department of Criminal Justice, and $500 fine. The appellate

court clerk received and filed the trial court clerk=s record on October 7, 2010. The trial

court reporter=s record was due to be received by October 4, 2010. This Court received

two requests for extension of time to file the reporter’s record, both indicating that

appellant had neither requested preparation of the record nor paid for or made

arrangements to pay for the record. Concurrent with granting the reporter’s first request
for extension, this Court sent a letter to appellant directing him to request and to pay for

or make arrangements to pay for the reporter’s record and to certify that such action

was taken by November 15, 2010, or the Court may set a deadline for appellant’s brief

in the absence of a reporter’s record. When the reporter’s second request for extension

was received on November 17 and no certification of compliance with the Court’s

directive was received from appellant, the Court notified appellant by letter that his

appellate brief was due on or before December 20, 2010. Appellant did not file his brief

or request an extension of time to file his brief by this deadline. Consequently, on

January 3, 2011, this Court sent appellant notice that, pursuant to Texas Rule of

Appellate Procedure 38.8, failure to file his brief by January 13, may result in the appeal

being abated and remanded without further notice.              As of the date of this order,

appellant has failed to file his brief or a motion for extension of time to file his brief.


       Accordingly, we now abate this appeal and remand the cause to the trial court.

See TEX. R. APP. P. 38.8(b)(2). Upon remand, the judge of the trial court is directed to

immediately cause notice to be given of and to conduct a hearing to determine: (1)

whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute

this appeal, whether appellant is indigent and whether appellant desires that counsel be

appointed to represent him on the appeal; and (3) what orders, if any, should be entered

to assure the filing of appropriate notices and documentation to dismiss appellant=s

appeal if appellant does not desire to prosecute this appeal or, if appellant desires to

prosecute this appeal, to assure that the appeal will be diligently pursued. If the trial

court appoints counsel for appellant or if appellant retains counsel, the court should


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cause the Clerk of this Court to be furnished the name, address, and State Bar of Texas

identification number of the newly-appointed or newly-retained attorney.


      The trial court is directed to: (1) conduct any necessary hearings; (2) make and

file appropriate findings of fact, conclusions of law, and recommendations and cause

them to be included in a supplemental clerk=s record; (3) cause the hearing proceedings

to be transcribed and included in a supplemental reporter=s record; (4) have a record of

the proceedings made to the extent any of the proceedings are not included in the

supplemental clerk=s record or the supplemental reporter=s record; and (5) cause the

records of the proceedings to be sent to this Court. See TEX. R. APP. P. 38.8(b)(3). In

the absence of a request for extension of time from the trial court, the supplemental

clerk=s record, supplemental reporter=s record, and any additional proceeding records,

including any orders, findings, conclusions, and recommendations, are to be sent so as

to be received by the Clerk of this Court not later than February 21, 2011.




                                                Per Curiam


Do not publish.




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