                             NO. 07-97-0375-CR

                          IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                                  AT AMARILLO

                                    PANEL A

                                 JULY 29, 1998

                       ______________________________


                         JOE LEE MACKEY, APPELLANT

                                      V.

                        THE STATE OF TEXAS, APPELLEE

                   _________________________________

                             ABATEMENT AND REMAND
                       _______________________________

        FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 97-424936; HONORABLE JIM B. DARNELL, JUDGE

                       _______________________________

Before BOYD, C.J., and DODSON and REAVIS, JJ.


     From    a   not    guilty   plea,   appellant   Joe   Lee   Mackey,   was

convicted of delivery of less than four grams but more than one

gram of cocaine.        Upon finding the indictment’s two enhancement

averments true, the jury assessed his punishment at sixty-five

years confinement in the Texas Department of Criminal Justice,
Institutional Division.     Appellant timely filed his notice of

appeal.


     The clerk’s record was filed on December 31, 1997, and the

reporter’s record was filed on January 29, 1998.      Appellant is

represented by appointed counsel in this appeal.        We granted

appointed counsel three extensions to file appellant’s brief, the

last being due on May 26.


     On July 8, this Court informed the district attorney and

appellant that the appellant’s brief was due on May 26, and yet no

brief had been filed.     The Court further advised them that the

appeal would be abated and the cause remanded for a factual hearing

unless appellant filed with this Court, within ten (10) days, a

response satisfactorily explaining the absence of the brief.    Tex.

R. App. P. 38.8(b).   No such response has been received.


     Accordingly, we abate the appeal and remand the case to the

trial court for proceedings under Rule 38.8(b). In pertinent part,

this rule provides:


     (1) Effect.   An appellant’s failure to timely file a
     brief does not authorize either dismissal of the appeal
     or, except as provided in (4), consideration of the
     appeal without briefs.
     (2) Notice.   If the appellant’s brief is not timely
     filed, the appellate clerk must notify counsel for the
     parties and the trial court of that fact.        If the
     appellate court does not receive a satisfactory response
     within ten days, the court must order the trial court to
     immediately conduct a hearing to determine whether the

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     appellant desires to prosecute his appeal, whether the
     appellant is indigent, or, if not indigent, whether
     retained counsel has abandoned the appeal, and to make
     appropriate findings and recommendations.    (Emphasis
     added).
     (3) Hearing. In accordance with (2), the trial court
     must conduct any necessary hearings, make appropriate
     findings and recommendations, and have a record of the
     proceedings prepared, which record--including any order
     and findings--must be sent to the appellate court.
     (4) Appellate court action. Based on the trial court’s
     record, the appellate court may act appropriately to
     ensure that the appellant’s rights are protected,
     including   initiating  contempt   proceedings   against
     appellant’s counsel. If the trial court has found that
     the appellant no longer desires to prosecute the appeal,
     or that the appellant is not indigent but has not made
     the necessary arrangements for filing a brief, the
     appellate court may consider the appeal without briefs,
     as justice may require.


     Upon remand, the trial court shall immediately cause notice of

a hearing to be given and, thereafter, conduct a hearing to

determine the following:


     1.   whether appellant still desires to prosecute the
     appeal;
     2. whether appellant is still indigent and entitled to
     appointed counsel;
     3.   whether counsel for appellant has abandoned the
     appeal; and
     4.    whether appellant has been denied effective
     assistance of counsel given his attorney's failure to
     file a brief.


If the trial court finds that the appellant is still indigent, the

trial court shall take such measures as may be necessary to assure

effective   representation   of   counsel,   which   may   include   the


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appointment of new counsel.   Accord Tex. R. App. P. 38.8(b) (2) &

(3).   If the trial court appoints counsel for appellant, the judge

shall state the name, address, and state bar number of said counsel

in the court's findings.    Moreover, the court shall further order

appellant's counsel or appointed counsel to file appellant's brief

no later than thirty (30) days after the date of the abatement

hearing.


       Upon remand, the judge of the trial court shall immediately

cause notice to be given of, and shall conduct a hearing in

accordance with provisions of Rule 38.8(b), supra, to determine the

matters stated therein and enumerated above.       After the hearing,

the trial court shall cause the preparation of a supplemental

clerk’s record containing the court’s findings of fact, conclusions

of law, and such orders as the court may make and sign.      Then the

trial court shall cause the supplemental clerk’s record and the

reporter’s record made at the hearing to be submitted to this Court

not later than August 31, 1998.


       It is so ordered.


                                      Per Curiam




Do not publish.    Tex. R. App. P. 44.4.

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