
NO. 07-07-0256-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 28, 2007
 ______________________________

AUCENCIO CASTRO ALVAREZ, APPELLANT

V.

CYNDIA ANN ALVAREZ, APPELLEE
_________________________________

FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

NO. 23,819; HONORABLE DAN MIKE BIRD, JUDGE
_______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ON MOTION TO DISMISS
	Aucencio Castro Alvarez, appellant, has filed a motion to dismiss this appeal
because a Motion for New Trial was granted by the trial court. No decision of this Court
having been delivered to date, we grant the motion.  Accordingly, the appeal is dismissed. 
Tex. R. App. P. 42.1(a)(1).   All costs of this appeal are assessed to the appellant.  No
motion for rehearing will be entertained and our mandate will issue forthwith.

							Mackey K. Hancock
						                   Justice

anded on May 9, 2001.  Following
a hearing, the trial court found that appellant is indigent and desires to prosecute his
appeal.  Mr. Richard Forcum was appointed new appellate counsel, and on August 2,
2001, an extension of time was granted in which to file appellant's brief until August 29,
2001.  The brief has yet to be filed and no further motion for extension of time has been
filed.  By letter dated October 8, 2001, this Court notified Mr. Forcum of the defect and also
directed him to explain to this Court by October 18, 2001, why the brief was not filed.  Mr.
Forcum did not respond and the brief remains outstanding.
 Therefore, we now abate this appeal a second time and remand the cause to the
trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules
of Appellate Procedure.  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 appellant is indigent and entitled to new appointed counsel;
 
	3. 	whether counsel for appellant has abandoned the appeal; and
 
	4. 	whether appellant has been denied effective assistance of counsel
given his attorney's failure to file a brief.


The trial court shall cause the hearing to be transcribed.  Should it be determined that
appellant desires 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
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 Friday, December 28,
2001.
	It is so ordered.

	Per Curiam


Do not publish.
