                                   NO. 07-08-0196-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                  NOVEMBER 14, 2008

                          ______________________________


                             JESUS PERALES, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY;

                NO. 1067039D; HON. MOLLIE WESTFALL, PRESIDING

                         _______________________________

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


                            ON ABATEMENT AND REMAND


       Appellant, Jesus Perales appeals his conviction for the offense of aggravated

assault causing bodily injury and sentence of 40 years confinement in the Institutional

Division of the Texas Department of Criminal Justice. We abate for further proceedings.


       Appellant's brief was due to be filed no later than October 16, 2008, but has yet to

be filed. Appellant’s attorney of record was notified by letter dated October 23 that, unless
a brief or motion was received by November 3rd, this court would abate the appeal to the

trial court. Appellate counsel has not filed a brief or had further communication with this

court.


         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). 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;

         2.    whether the trial court appointed counsel for appellant has abandoned the
               appeal; and

         3.    whether appellant has been denied effective assistance of counsel given the
               attorney’s failure to file a brief.



   The trial court shall cause a hearing to be transcribed. Should it be determined that

appellant does want to continue the appeal and is indigent, then the trial court shall also

take such measures as may be necessary to assure appellant effective assistance of

counsel, which measures may include the appointment of new counsel. If new counsel is

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

shall be included in the order appointing new counsel. Finally, the trial court shall execute

findings of fact, conclusions of law, and such orders as the court may enter regarding the

aforementioned issues and cause its findings and conclusions to be included in a

supplemental clerk's record. A supplemental record of the hearing shall also be included



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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 December 15, 2008.


       It is so ordered.



                                         Per Curiam

Do not publish.




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