                                    NO. 07-10-00479-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                       MAY 4, 2011


                          CHRIS ALLEN MCLAIN, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE


               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

            NO. A18122-0908; HONORABLE EDWARD LEE SELF, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                     ORDER OF ABATEMENT AND REMAND


       Appellant, Chris Allen McLain, filed a notice of appeal from his conviction for

possession of a controlled substance, and sentence of four years incarceration in the

Institutional Division of the Texas Department of Criminal Justice and $1,000 fine. The

appellate court clerk received and filed the trial court clerk=s record on December 20,

2010. The official court reporter filed a request for extension of time to file the record on

December 14, indicating that appellant had not paid for or made arrangements to pay

for the reporter’s record. On December 15, this Court sent correspondence to appellant

directing him to pay for or make arrangements to pay for the reporter’s record by

January 17, 2011, or the deadline for appellant’s brief might be set in the absence of the
reporter’s record. On January 18, this Court received a second request for extension of

time to file the reporter’s record, which again indicated that appellant had not paid for or

made arrangements to pay for the reporter’s record. On January 26, this Court notified

appellant that his brief would be due on or before February 25. When appellant failed to

comply with this deadline, the Court sent appellant notice that his brief was past due

and advised appellant that failure to file his brief by March 14, may result in the appeal

being abated and remanded to the trial court for further proceedings. To date, appellant

has failed to file his brief or in any manner respond to our notices.


       Consequently, we abated this appeal and remanded the cause to the trial court

on March 25. See TEX. R. APP. P. 38.8(b)(2). We directed the trial court to hold 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. The supplemental clerk’s record includes findings of fact that

indicate that appellant failed to appear at the hearing, even though notified of the

hearing by both the trial court and the surety on his appeal bond, and that the trial court

ordered his appeal bond forfeited. The trial court also found that a capias has been

ordered for the arrest of appellant and that, because appellant is a fugitive, the trial

court does not know whether appellant desires to prosecute this appeal.


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       However, also included in the supplemental clerk’s record is a letter, dated the

same date as the hearing on remand, sent to the trial court from Arnold N. Miller, which

indicates that Miller had been retained by appellant to represent him in this cause.1

Miller has not made an appearance in this Court on appellant’s behalf. In an attempt to

clarify confusion relating to whether Miller is representing appellant in this appeal, this

Court sent correspondence to Miller on April 15, directing Miller, if he has been retained

to represent appellant in this appeal, to designate himself as lead counsel by April 25.2

To date, neither Miller nor appellant has responded to our directive.


       Accordingly, we again 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) whether appellant has retained

Arnold N. Miller to represent him in this 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.3 If


       1
          We note that this letter identifies the present cause by trial court cause number, but
does not identify the appellate cause number assigned to this case, and that Miller identifies his
representation as being “in regard to the above case pending in the 242nd District Court, Hale
County, Texas.” Nothing in this letter in any way indicates that Miller is aware that this case is
currently on appeal.
       2
           A copy of this letter was also sent to appellant at his last known address.
       3
         Our review of the record reveals that appellant is not currently serving his sentence of
four years incarceration because he has been released from custody on an appeal bond. While
we are also aware that a capias has been issued for appellant’s arrest, based on the extensive
delays caused by appellant and as appellant is currently avoiding incarceration on an appeal

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the trial court appoints counsel for appellant or appellant retained Miller or another

attorney, 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

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 June 3, 2011.




                                                                Per Curiam

Do not publish.




bond, we direct the trial court to find whether this appeal was taken by appellant with the
intention of pursuing it to completion or was taken for other purposes unrelated to the
disposition of the case, such as for purely dilatory purposes. See Meyer v. State, 310 S.W.3d
24, 26 (Tex.App.—Texarkana 2010, no pet.).

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