                                    NO. 07-05-0142-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                   NOVEMBER 29, 2005

                           ______________________________


                          TERRY L. MATTHEWS, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

      FROM THE COUNTY COURT AT LAW NO. ONE OF LUBBOCK COUNTY;

              NO. 2004-487343; HONORABLE L.B. RUSTY LADD, JUDGE

                          _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.


                               ABATEMENT AND REMAND


       Following a plea of not guilty, appellant Terry L. Matthews was convicted by a jury

of driving while intoxicated, enhanced by a prior conviction for driving while intoxicated, and

punishment was assessed at 120 days confinement in the county jail. Both the clerk’s

record and reporter’s record have been filed. Appellant’s brief was originally due to be filed
on August 24, 2005. Three extensions of time have been granted and the brief has yet to

be filed. Retained counsel was notified by letter dated October 25, 2005, that failure to file

the brief by November 9, 2005, would result in application of Rule 38.8(b) of the Texas

Rules of Appellate Procedure. Counsel did not respond and the brief remains outstanding.


       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) 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 appointed counsel;
       3.     whether retained counsel for appellant has abandoned the appeal;
              and
       4.     whether appellant has been denied effective assistance of counsel
              given counsel’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 the court determines that present counsel

should be replaced, the name, address, telephone number, and state bar number of the

newly-appointed or newly-retained counsel shall be provided to the Clerk of this Court.

Finally, the trial court shall execute findings of fact, conclusions of law, and any necessary

orders it 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


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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 30, 2005.


       It is so ordered.

                                                   Per Curiam

Do not publish.




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