                          NO. 07-09-0176-CR, 07-09-0177-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                  AUGUST 18, 2009
                          ______________________________

                            JOSE LUIS PRADO, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

             NO. 55,938-A, 55,939-A; HONORABLE HAL MINER, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                        ORDER OF ABATEMENT AND REMAND


       Appellant, Jose Luis Prado, filed a notice of appeal from his convictions for

manufacture and delivery of a controlled substance and sentences in Cause Nos. 55938-A

and 55939-A in the 47th District Court of Potter County, Texas (the trial court). The

appellate court clerk received and filed the trial court reporter’s record on July 22, 2009.

However, no trial court clerk’s record has been filed.


       On July 1, 2009, this Court received a request from the district clerk requesting an

extension of time to file the clerk’s record on the basis that appellant had not paid or made
arrangements to pay for the preparation of the record. Further, the district clerk noted that

no court-appointed attorney had been assigned to the case. On July 6, 2009, this Court

granted the district clerk’s request for extension and directed appellant to certify whether

he had complied with Texas Rule of Appellate Procedure 35.3(a)(2) by July 27, 2009.

Further, appellant was notified that the failure to comply with this deadline may result in the

appeal being abated and the cause being remanded to the trial court for further

proceedings. See TEX . R. APP. P. 37.3(a)(2). To date, appellant has failed to comply with

this Court’s directive.


       Accordingly, this appeal is abated and the cause is remanded to the trial court. Id.

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.




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       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

records of the proceedings to be sent to this Court. Id. 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 September 11, 2009.1




                                                 Per Curiam


Do not publish.




       1
          A review of the record on file in this case reveals that there is currently no
certification of defendant’s rights of appeal on file. As a general rule, the certification
should be part of the record when notice is filed. TEX . R. APP . P. 25.2(d). In addition, a
copy of the certification should have been sent to the Clerk of this Court with appellant’s
Notice of Appeal. TEX . R. APP. P. 25.2(e).

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