                                     NO. 07-11-0066-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                            PANEL D

                                 SEPTEMBER 15, 2011
                           ______________________________


                             RICHARD MORGAN, APPELLANT

                                                V.

                            THE STATE OF TEXAS, APPELLEE


                         _________________________________

             FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2009-422,402; HONORABLE JIM B. DARNELL, JUDGE

                           _______________________________

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


                                ABATEMENT AND REMAND


       Following a plea of guilty to two counts of aggravated sexual assault,1 Appellant,

Richard Morgan, elected to have a jury assess punishment.           After presentation of

evidence, he was sentenced to thirty years confinement. Both the clerk's record and

reporter's record have been filed. Appellant's brief was originally due to be filed on June

20, 2011. After an extension of time was granted to July 20, 2011, Appellant's brief was


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Tex. Penal Code Ann. § 22.021(a)(2)(B) (West 2011).
not filed; neither did counsel communicate with this Court. By letter dated August 1,

2011, Appellant's counsel was advised that the brief was outstanding and granted

Appellant until August 11, 2011, in which to file the brief, noting that failure to comply

might result in abatement of the appeal and remand of the cause to the trial court for

further proceedings. Counsel was further advised pursuant to Rule 38.6(d) of the Texas

Rules of Appellate Procedure that the filing of Appellant's brief would require a Motion to

Extend Time to File Appellant's Brief.


       Instead of filing the brief and an accompanying motion, counsel filed a

subsequent motion for extension of time requesting until August 19, 2011, in which to

file the brief. As explanation for the delay, counsel detailed computer problems and

issues in having it repaired.            His motion was accompanied by supporting

documentation. This Court granted counsel's request for an extension to the requested

date of August 19, 2011. To date, however, the brief remains outstanding and there

has been no subsequent communication by counsel with this Court.


       We now abate this appeal and remand the cause to the trial court for further

proceedings. Upon remand, the trial court shall immediately determine why counsel

has failed to timely file Appellant=s brief and take such action as is necessary to ensure

that the brief is filed with the Clerk of this Court on or before September 30, 2011.


       Should counsel file Appellant's brief on or before September 30, 2011, he is

directed to immediately notify the trial court, in writing, of the filing, whereupon the trial

court shall not be required to take further action.




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       If, however, the brief is not filed by September 30, 2011, pursuant to Rule

38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure, the trial court is

ORDERED to conduct a hearing to determine the following:


       1.     whether Appellant desires to prosecute this appeal;
       2.     whether Appellant=s counsel has abandoned this appeal;
       3.     whether Appellant desires and is entitled to new appointed counsel.


       Should it be determined that Appellant desires to prosecute this appeal, that

counsel has abandoned this appeal, and that Appellant desires and is entitled to new

appointed counsel, the name, address, telephone number, and state bar number of the

newly-appointed counsel shall be provided to the Clerk of this Court. The trial court

shall execute findings of fact and conclusions of law, and shall cause its findings,

conclusions, and any necessary orders to be included in a supplemental clerk's record

to be filed with the Clerk of this Court by October 10, 2011. Finally, newly appointed

counsel shall file Appellant's brief within thirty days after the date of appointment.


       It is so ordered.


                                                  Per Curiam

Do not publish.




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