
NO. 07-06-0132-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JANUARY 19, 2007

______________________________


TIMOTHY B. MIERS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2002-439062; HONORABLE JIM BOB DARNELL, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
	Pursuant to a plea of guilty, on August 2, 2002, Appellant, Timothy B. Miers, was
convicted of driving while intoxicated, enhanced.  Punishment was assessed at five years
confinement, suspended for five years.  Upon the State's First Amended Application to
Revoke Community Supervision for violations of the terms and conditions thereof, the trial
court heard evidence and on March 15, 2006, revoked Appellant's community supervision
and sentenced him to four years confinement.  The clerk's record was filed on June 15,
2006, and the reporter's record was filed on July 12, 2006.  Following two extensions of
time in which to file Appellant's brief, appointed counsel, Maxwell C. Peck, III, advised this
Court by letter dated October 13, 2006, of his request to the court reporter to prepare a
supplemental reporter's record.  Counsel also requested that he be relieved from further
responsibility of filing motions for extensions of time until the supplemental reporter's
record was filed.  The supplemental reporter's record was filed on November 20, 2006. 
Appellant's brief was due to be filed on or before December 20, 2006, but has yet to be
filed.  By letter dated January 3, 2007, this Court notified counsel of the deficiency and
advised counsel that if no brief or response was received by January 16, 2007, the appeal
would be abated to the trial court for further proceedings pursuant to Rule 38.8(b) of the
Texas Rules of Appellate Procedure.  Neither the brief nor a response was filed to this
Court's January 3 notice. 
	Therefore, we now abate this appeal and remand the cause to the trial court for
further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate
Procedure.  Upon remand, the trial court shall immediately cause notice of a hearing to be
given and, thereafter, conduct a hearing to determine:  
	1.  	whether Appellant desires to prosecute the appeal;
	2.	if Appellant desires to prosecute this appeal, then whether Appellant
is indigent;	
	3. 	whether present appointed counsel should be replaced; and

	what orders, if any, should be entered to assure the filing of
appropriate notices and documentation to dismiss this appeal if
Appellant no longer desires to prosecute this appeal, or, if appellant
desires to prosecute this appeal, to assure that the appeal will be
diligently pursued.		

The trial court shall cause the hearing to be transcribed.  Should it be determined that
appellant does want to continue the appeal and the court determines that present counsel
should be replaced, the name, address, telephone number, and state bar number of the
newly-appointed or newly-retained counsel shall be provided to the Clerk of this Court. 
Finally, the trial court shall execute findings of fact, conclusions of law, and any necessary
orders it may enter regarding the aforementioned issues and cause its findings,
conclusions, and orders to be included in a supplemental clerk's record.  A supplemental
record of the hearing shall also be included in the appellate record.  Finally, the trial court
shall file the supplemental clerk's record and the supplemental reporter's record with the
Clerk of this Court by February 20, 2007.
 It is so ordered.

	Per Curiam
 

 

Do not publish.
 
