                                  NO. 07-10-00232-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 SEPTEMBER 29, 2010


                           BARSHA FANNER, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


           FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

                 NO. 11,293; HONORABLE DAN MIKE BIRD, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                ABATE AND REMAND

      Appellant, Barsha Fanner, filed a notice of appeal from his conviction for

aggravated assault, and sentence of forty-five 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 June 22, 2010, and the trial court

reporter=s record was received and filed on June 24, 2010. Thus, appellant=s brief was

due on or before July 26. Appellant did not file his brief or request an extension of time

to file his brief by this deadline. Consequently, on August 4, this Court sent appellant

notice that, pursuant to Texas Rule of Appellate Procedure 38.8, failure to file his brief
by August 16, may result in the appeal being abated and remanded without further

notice. On August 16, appellant filed a motion for extension of time to file appellant’s

brief requesting an extension until August 23. This motion was granted by this Court on

August 16. On August 23, appellant again filed a motion for extension of time to file

appellant’s brief. This Court denied this second motion because it failed to show good

cause for the extension, and appellant was notified that his brief was due on or before

September 15, and that failure to comply with this deadline 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 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.


                                            2
      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 October 29, 2010.




                                                Per Curiam


Do not publish.




                                            3
