                                  NO. 07-09-0262-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                  JANUARY 7, 2010
                           ______________________________

                          BRET ALAN AVERY, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE
                         _________________________________

            FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                  NO. 19996-C; HONORABLE ANA ESTEVEZ, JUDGE
                         _______________________________


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


                           ON ABATEMENT AND REMAND


      Appellant, Bret Alan Avery, appeals from his conviction for possession of a

controlled substance in a drug-free zone and sentence, pronounced on July 23, 2009, of

17 years incarceration in the Texas Department of Criminal Justice, Institutional

Division. Appellant filed notice of appeal on August 3, 2009.


      The clerk’s record was filed on September 24, 2009. The reporter’s record was

due on October 26, 2009.      The reporter neither filed the record nor requested an

extension of time to file the record by that date. On November 13, 2009, the reporter
requested an extension of time to file the record and indicated that the record was being

edited at that time. The Court granted this extension request, making the reporter’s

record due on December 7, 2009. On December 8, 2009, the reporter again filed a

request for extension of time to file the record indicating that she was having a difficult

time editing the record “due to the sound I am proofing with as well as the way the

attorneys presented their cases.” The Court granted this extension request, making

the reporter’s record due on December 28, 2009. On December 29, 2009, the reporter

filed a third request for extension of time to file the record indicating only that “I am

completing this record. Please give me 30 more days.” According to the reporter’s

monthly report, this record is “being proofread.” There is no explanation provided as to

why the reporter needs 30 days to proofread the record in this case. As such, we deny

the reporter’s third request for extension of time to file the reporter’s record as not being

supported by good cause.


       Accordingly, we abate this appeal and remand the cause to the trial court for

further proceedings. See TEX. R. APP. P. 35.3(c). Upon remand, the trial court shall

immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to

determine whether the reporter’s caseload is such that an alternate or substitute

reporter should or can be appointed to complete the record in this appeal in a timely

manner. If so, the trial court is directed to take whatever steps are necessary to ensure

that the reporter’s record in this appeal is filed as soon as practicable.


       The trial court shall cause the hearing to be transcribed. In addition, the trial

court shall (1) execute findings of fact and conclusions of law addressing the foregoing

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issues, (2) cause a supplemental clerk’s record to be developed containing its findings

of fact and conclusions of law and any orders it may issue relating to this matter, and (3)

cause a reporter’s record to be developed transcribing the evidence and arguments

presented at the aforementioned hearing, if any.       The trial court shall then file the

supplemental clerk’s record and any reporter’s record transcribing the hearing with the

Clerk of this Court on or before February 8, 2010. Should further time be needed by

the trial court to perform these tasks, same must be requested before February 8, 2010.


       It is so ordered.


                                          Per Curiam




Do not publish.




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