                                   NO. 07-09-0238-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                 OCTOBER 23, 2009
                          ______________________________

                         NITO JIM GUERRA, JR., APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

              FROM THE 264TH DISTRICT COURT OF BELL COUNTY;

                NO. 63206; HONORABLE MARTHA J. TRUDO, JUDGE
                       _______________________________


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


                        ORDER OF ABATEMENT AND REMAND


       Appellant, Nito Jim Guerra, Jr., filed a notice of appeal from his conviction for

evading arrest or detention with a motor vehicle and sentence of 40 years incarceration.

The appellate court clerk received and filed the trial court clerk’s record on July 20, 2009.

The trial court reporter’s record was received and filed on September 1, 2009. Thus,

appellant’s brief was due on or before October 1, 2009.
       On October 8, 2009, this Court notified appellant that his brief was past due and

that, if his brief was not filed by October 19, 2009, his appeal would be abated and

remanded to the trial court. As of the date of this order, appellant has failed to file his brief.


       Accordingly, we now abate this appeal and remand the cause to the trial court. See

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

appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal,

whether appellant is indigent and, if not indigent, whether counsel for appellant has

abandoned the appeal; (3) if appellant desires to prosecute this appeal, whether

appellant’s present counsel should be replaced; and (4) 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.


       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

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records of the proceedings to be sent to this Court. See 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 November 23, 2009.




                                                 Per Curiam


Do not publish.




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