                                   NO. 07-03-0181-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                    AUGUST 18, 2003

                          ______________________________


                      JOSE SANTOS CERVANTES, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

               FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

              NO. A14649-0209; HONORABLE JACK R. MILLER, JUDGE

                         _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                              ABATEMENT AND REMAND


       Pursuant to a plea of guilty, appellant Jose Santos Cervantes was convicted of theft

and punishment was assessed at two years in a state jail facility, suspended for five years.

The clerk’s record and reporter’s record have both been filed. Appellant’s brief was due

to be filed on or before June 30, 2003, but has yet to be filed. Also, no motion for
extension of time has been filed. By letter dated July 25, 2003, this Court notified

appellant, proceeding pro se, of the defect and directed him to explain by August 5, 2003,

why the brief has not been filed. Appellant 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; and

       2.      whether appellant is indigent and entitled to appointed counsel;

The trial court shall cause a 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 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



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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, September 26,

2003.


        It is so ordered.

                                                   Per Curiam

Do not publish.




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