                                   NO. 07-05-0199-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 NOVEMBER 14, 2005

                          ______________________________


                        LALENA RENEE MOORE, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

              FROM THE 31ST DISTRICT COURT OF GRAY COUNTY;

                 NO. 6707; HONORABLE STEVEN R. EMMERT, JUDGE

                         _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.


                             ABATEMENT AND REMAND


      Following a plea of not guilty, appellant Lalena Renee Moore was convicted by a jury

of possession of a controlled substance. The trial court assessed punishment at one year

confinement in a state jail facility, suspended for two years, and a $1,000 fine, which was

not suspended.
       The clerk’s record was filed on August 2, 2005, and a supplemental clerk’s record

containing the trial court’s certification of defendant’s right of appeal was filed on August

15, 2005. The court reporter was notified by letter dated July 19, 2005, that the deadline

for filing the reporter’s record had lapsed. Two extensions of time in which to file the

reporter’s record were granted due to appellant’s failure to submit a written designation and

to make arrangements to pay for the record. Counsel for appellant, John Mann, was also

directed to certify compliance with Rules 34.6(b)(1) and 35.3(b) of the Texas Rules of

Appellate Procedure to this Court no later than August 30, 2005. Counsel failed to

respond, and the court reporter filed a third request for an extension of time. By letter

dated September 14, 2005, that request was rendered moot and, the deadline for filing

appellant’s brief was set for October 13, 2005. Pursuant to Rule 37.3(c), counsel was

notified that only points or issues that do not require a reporter’s record could be raised.


       Appellant did not file a brief and was notified by letter dated October 20, 2005, that

failure to do so or respond would result in the appeal being abated. See Tex. R. App. P.

38.8(b). Therefore, we now abate this appeal and remand the cause to the trial court for

further proceedings. Id. at (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 appellant is indigent and entitled to appointed counsel; and
       3.     whether retained counsel has abandoned the appeal.

                                             2
The trial court shall cause the 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 appointment of counsel. If 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 reporter’s 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 16, 2005.


       It is so ordered.

                                                  Per Curiam

Do not publish.




                                             3
