                                  NO. 07-05-0374-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL D

                                DECEMBER 6, 2005
                         ______________________________

                           JOSE MARTINEZ RODRIGUEZ,

                                                              Appellant

                                            v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 95-419,903; HON. CECIL PURYEAR, PRESIDING
                       _______________________________

                           ABATEMENT AND REMAND
                      __________________________________

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

      Jose Martinez Rodriguez (appellant) appeals his conviction for delivery of marijuana.

The clerk’s record was filed on November 9, 2005. The court reporter requested an

extension of time to file the reporter’s record because appellant had yet to make

arrangements for its payment. The motion was granted, and the deadline was extended

to December 19, 2005. On November 17, 2005, we also directed appellant’s counsel to

certify to the clerk of this court whether appellant had complied with Texas Rules of

Appellate Procedure 34.6(b)(1) and 35.3(b)(3). The certification was due by November 28,

2005. To date, no response has been received.
       Consequently, we abate the appeal and remand the cause to the 137th District

Court of Lubbock County (trial court) for further proceedings. 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 desires to prosecute the appeal; and

       2.     whether appellant is indigent and entitled to a free record.

       If appellant is found to be neither indigent nor entitled to a free record, his continued

failure to arrange for payment of the reporter’s record will result in his appeal being

dismissed for want of prosecution. See Rodriguez v. State, 970 S.W.2d 133, 135 (Tex.

App.–Amarillo 1998, pet. ref'd). We further direct the trial court to issue findings of fact and

conclusions of law addressing the foregoing subjects. Furthermore, the trial court shall

also cause to be developed 1) a supplemental clerk’s record containing the findings of fact

and conclusions of law and 2) a reporter’s record transcribing the evidence and argument

presented at the aforementioned hearing. Additionally, the trial court shall cause the

supplemental clerk’s record to be filed with the clerk of this court on or before January 5,

2005. Should additional time be needed to perform these tasks, the trial court may request

same on or before January 6, 2005. Finally, the deadline by which the reporter’s record

is due is extended to January 5, 2005.

       It is so ordered.

                                                   Per Curiam

Do not publish.




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