                                   NO. 07-09-0283-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  FEBRUARY 10, 2010

                            __________________________

                     RODNEY CARROLL KEELING, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                           ____________________________

            FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                 NO. 20539-C; HONORABLE ANA ESTEVEZ, JUDGE
                         ____________________________


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


                       ORDER OF ABATEMENT AND REMAND


      Appellant, Rodney Carroll Keeling, filed a notice of appeal from his conviction for

driving while intoxicated and enhanced sentence of 10 years incarceration in the

Institutional Division of the Texas Department of Criminal Justice. The appellate court

clerk received and filed the trial court clerk=s record on October 20, 2009, and the trial

court reporter=s record was received and filed on November 13, 2009. Appellant moved

for an extension of time to file his brief, which was granted, making appellant=s brief due

on or before January 13, 2010. Appellant did not file his brief or request an extension of
time to file his brief by this deadline. Consequently, on January 20, 2010, this Court

sent appellant notice that, pursuant to Texas Rule of Appellate Procedure 38.8, failure

to file his brief by February 1, 2010 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.


       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, 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.


       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

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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 March 9, 2010.




                                                Per Curiam


Do not publish.




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