                                   NO. 07-01-0155-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                  DECEMBER 11, 2001

                          ______________________________


                              MARVIN WARE, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

              FROM THE 174TH DISTRICT COURT OF HARRIS COUNTY;

                  NO. 858829; HONORABLE JON N. HUGHES, JUDGE

                         _______________________________

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


       Appellant Marvin Ware has given notice of appeal from a conviction and sentence

in Cause No. 858,829 in the 174th District Court of Harris County, Texas (the trial court),

for theft by a public servant. The appellate court clerk received and filed the trial court

clerk’s record on April 17, 2001, and received and filed the trial court reporter’s record on

April 18, 2001.
       Pursuant to motions by counsel for appellant, this court has granted two extensions

of time for filing appellant’s brief. On August 14, 2001, the appellate clerk notified

appellant’s counsel that extension of time for filing of appellant’s brief was extended to

October 10, 2001, and that a status report was to be filed with the appellate clerk on or

before September 15, 2001.


       By letter dated September 17, 2001, the clerk advised counsel for appellant that the

status report due on September 15, 2001, had not been received and requested that the

report be forwarded. The clerk has not received a status report, response to the letter of

September 17th, appellant’s brief or a motion for extension of time for filing of the brief.


       Accordingly, this appeal is abated and the cause is remanded to the trial court.

TEX . R. APP . P. 38.8(b)(2). Upon remand, the judge of the trial court is directed to

immediately cause notice to be given of and to conduct a hearing to determine: (1) whether

counsel for appellant has abandoned the appeal; (2) if appellant desires to prosecute this

appeal, whether appellant’s present counsel should be replaced; and (3) what orders, if

any, should be entered to assure the filing of appropriate notices and documentation to

dismiss appellant’s appeal if appellant does not desire to prosecute this appeal, or, if

appellant desires to prosecute this appeal, to assure that the appeal will be diligently

pursued. If the trial court determines that the present attorney for appellant should be

replaced, the court should cause the clerk of this court to be furnished the name, address,

and State Bar of Texas identification number of the newly-appointed or newly-retained

attorney.


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      The trial court is directed to: (1) conduct any necessary hearings; (2) make and file

appropriate findings of fact, conclusions of law and recommendations, and cause them to

be included in a supplemental clerk’s record; (3) cause the hearing proceedings to be

transcribed and included in a supplemental reporter’s record; (4) have a record of the

proceedings made to the extent any of the proceedings are not included in the

supplemental clerk’s record or the supplemental reporter’s record; and (5) cause the

records of the proceedings to be sent to this court. TEX . R. APP . P. 38.8(b)(3). In the

absence of a request for extension of time from the trial court, the supplemental clerk’s

record, supplemental reporter’s record, and any additional proceeding records, including

any orders, findings, conclusions and recommendations, are to be sent so as to be

received by the clerk of this court not later than January 15, 2002.




                                                Per Curiam


Do not publish.




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