                                     Fourth Court of Appeals
                                             San Antonio, Texas
                                                     October 3, 2016

                                                 No. 04-16-00485-CR

                                                  Salvador ZARATE,
                                                       Appellant

                                                              v.

                                                 The STATE of Texas,
                                                       Appellee

                          From the 381st Judicial District Court, Starr County, Texas
                                        Trial Court No. 15-CRS-402
                                 Honorable Jose Luis Garza, Judge Presiding


                                                     ORDER
        The clerk’s record was due to be filed in this appeal on September 8, 2016. On
September 8, 2016, the trial court clerk filed a notification of late record stating the clerk’s
record had not been filed because appellant had failed to pay or make arrangements to pay the
clerk’s fee for preparing the record and appellant is not entitled to appeal without paying the fee.

        On September 9, 2016, appellant was ordered to provide written proof to this court by
September 19, 2016 that either: (1) the clerk’s fee had been paid or arrangements had been made
to pay the clerk’s fee; or (2) appellant is entitled to appeal without paying the clerk’s fee. 1 The
order stated if appellant failed to respond within the time provided, this appeal would be
dismissed for want of prosecution. See TEX. R. APP. P. 37.3(b). Appellant did not respond to this
court’s order. Accordingly, by opinion and judgment dated September 28, 2016, this appeal was
dismissed for want of prosecution. See id.

         On September 30, 2016, appellant filed a motion to reinstate and a motion for leave to
file a response to this court’s September 9, 2016 order, stating this court’s order was misplaced
in his attorney’s file through oversight. The motion to reinstate and motion for leave to file a
response are GRANTED. This court’s opinion and judgment dated September 28, 2016 are
WITHDRAWN, and this appeal is REINSTATED on the docket of this court.




1
    The trial court’s certificate of notice of appeal shows that appellant is represented on appeal by a retained attorney.
        Appellant’s response states that he filed an affidavit with his request for the preparation
of the reporter’s record in this appeal, stating he was unable to pay for the costs of the appellate
record. A file-stamped copy of his request and affidavit are attached to the response. It is
therefore ORDERED that this appeal is ABATED to the trial court for a hearing to determine
whether the appellant is entitled to have the appellate record furnished without charge. See TEX.
R. APP. P. 20.2. The trial court is ORDERED to conduct the hearing and enter a written order
within two weeks from the date of this order, and the trial court clerk is ORDERED to file a
supplemental clerk’s record containing the trial court’s order no later than twenty days from the
date of this order.



                                                     _________________________________
                                                     Sandee Bryan Marion, Chief Justice


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of October, 2016.



                                                     ___________________________________
                                                     Keith E. Hottle
                                                     Clerk of Court
