                                   NO. 07-01-0306-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                      JUNE 5, 2002

                          ______________________________


                              LEE EDWARD BOOTEN
                     A/K/A LEE EDWARD TURNER, A/K/A QUICK

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

             FROM THE 155TH DISTRICT COURT OF WALLER COUNTY;

               NO. 00-07-10,291; HONORABLE MARY BACON, JUDGE

                         _______________________________

Before BOYD, C.J., and QUINN and JOHNSON, JJ.


                       ORDER OF ABATEMENT AND REMAND


       Appellant Lee Booten has given notice of appeal from a conviction and sentence

in Cause No. 00-07-10,291 in the 155th District Court of Waller County, Texas (the trial

court), for delivery of a controlled substance. The appellate court clerk received and filed

the trial court clerk’s record on June 18, 2001, and received and filed the trial court

reporter’s record on November 26, 2001. By letter dated May 14, 2002, the appellate clerk
advised counsel for appellant that appellant’s brief was past due, and that neither the brief

nor a motion for extension of time for filing of the brief had been received. Counsel for

appellant was further advised by such letter that if no response to the letter was received

on or before May 28, 2002, the appeal would be abated to the trial court for hearing

pursuant to TEX . R. APP. P. 38.8. No response to the clerk’s letter of May 14, 2002, has

been received.


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

R. APP. P. 38.8(b)(2). 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, then

whether appellant’s present counsel should be replaced; and (3) 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.


       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

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supplemental clerk’s record or the supplemental reporter’s record; and (5) cause the

records of the proceedings to be sent to this court. TEX . R. APP. P. 38.8(b)(3). 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 July 16, 2002.




                                                 Per Curiam


Do not publish.




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