                                  NO. 07-08-0093-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                 NOVEMBER 21, 2008

                         ______________________________


                       ANDY DEWAYNE POSEY, APPELLANT

                                            v.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                    NO. 53,792-E; HON. ABE LOPEZ, PRESIDING

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.



                    ORDER OF ABATEMENT AND REMAND


      Appellant, Andy DeWayne Posey, filed a notice of appeal from a conviction for

possession of a controlled substance in a drug-free zone and sentence of 40 years

incarceration in the Institutional Division of the Texas Department of Criminal Justice in

Cause No. 53,792-E in the 108th District Court of Potter County, Texas (the trial court).
The appellate court clerk received and filed the trial court clerk’s record on April 11, 2008,

and received and filed the trial court reporter’s record on July 29, 2008.


       This court has granted two prior extensions of the time for filing appellant’s brief.

On October 8, 2008, in granting the second motion, the appellate clerk notified appellant

that the failure to comply with the October 23, 2008 deadline to file the brief may result in

the appeal being abated and the cause being remanded to the trial court for further

proceedings. See TEX . R. APP. P. 38.8(b).


       Accordingly, this appeal is abated and the cause is remanded to the trial court. 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, if not indigent, whether counsel for appellant has abandoned the

appeal; (3) if appellant desires to prosecute this appeal, whether appellant’s present

counsel should be replaced; 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 appeal will be diligently pursued. If the trial court determines that the

present attorney for appellant should be replaced, the court should 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.




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      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. 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 December 22, 2008.




                                                Per Curiam


Do not publish.




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