                                    NO. 07-02-0375-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL E

                                   NOVEMBER 26, 2002

                           ______________________________


                         TARA SHAREE JOHNSON, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

              FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                 NO. 40,305-D; HONORABLE DON EMERSON, JUDGE

                          _______________________________

Before REAVIS and JOHNSON, JJ., and BOYD, S.J.1


       On September 10, 2002, a copy of a Notice of Appeal in cause No. 40305-D in the

320th District Court of Potter County, Texas (the trial court), was filed with the clerk of this

court (the appellate clerk). The document filed gives notice that appellant Tara Sharee

Johnson desires to appeal from a conviction and sentence in such court and cause




       1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
number. On September 16, 2002, an appellate docketing statement was filed which sets

out that the appeal is from a judgment or order dated August 15, 2002.


       On October 15, 2002, a request for extension of time for filing the clerk’s record was

filed with the appellate clerk. By such request, the District Clerk of Potter County (the trial

court clerk) advised that the clerk’s record had not been paid for and that appellant had

made no arrangements to pay for the record. An extension of time was granted for filing

the clerk’s record until November 13, 2002. The clerk’s record has not been filed.


       On November 14, 2002, the appellate clerk received a notice from the trial court

clerk that the clerk’s record has not been paid for, and that the record will not be forwarded

to the appellate court for filing. The appellate clerk’s record reflects no other action by any

party to the appeal to prosecute the appeal.


       Accordingly, this appeal is abated and the cause is remanded to the trial court. TEX .

R. APP. P. 37.3(a)(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, then

whether appellant is indigent; (3) if appellant desires to prosecute this appeal, whether

appellant is entitled to have the clerk’s record and a reporter’s record furnished without

charge; and (4) 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




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clerk’s record and the reporter’s record will be promptly filed and that the appeal will be

diligently pursued.


       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 clerk’s record on remand; (3) enter any orders appropriate to the

circumstances; (4) cause the hearing proceedings to be transcribed and included in a

reporter’s record; and (5) 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 reporter’s record.

In the absence of a request for extension of time from the trial court, the clerk’s record on

remand, reporter’s record of the hearing and proceedings pursuant to this order, 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 December 31, 2002.




                                                                Per Curiam


Do not publish.




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