                                   NO. 07-04-0377-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                    OCTOBER 1, 2004

                          ______________________________


                        ROBERT E. BARRIENTEZ, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

             FROM THE 251st DISTRICT COURT OF POTTER COUNTY;

                NO. 46,858-C; HONORABLE PATRICK PIRTLE, JUDGE

                         _______________________________

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


                       ORDER ON ABATEMENT AND REMAND


       Robert E. Barrientez appeals a conviction of the offense of failure to register as a

sex offender. The clerk’s record, which was due no later than August 23, 2004, has not

been received. On August 23, this court was notified by the district clerk that appellant had

not paid or made arrangements to pay for the record. By letter, appellant’s retained

counsel was directed to certify to the clerk of this court on or before September 13, 2004,
in writing, whether Rule 34.5(a)(10) and Rule 35.3(a)(2) of the Texas Rules of Appellate

Procedure have been complied with; if so, the date of compliance, and if not, a reasonable

explanation for non-compliance.


       Appellant filed a Motion to Extend Time to File Appellant’s Brief, in which it is

indicated that the clerk’s record had been filed. The clerk’s record has not been filed as of

this date. On September 16, 2004 this court, by letter, again directed appellant to provide

the certification required on or before September 27, 2004. No response has been

received. We, therefore, abate the appeal and remand the cause to the 251st District Court

of Potter County. The judge of said court is ordered to convene a hearing (after notice to

appellant and other parties in interest) to determine the following matters:


       1.     Whether appellant desires to prosecute this appeal;
       2.     if appellant desires to prosecute this appeal then whether appellant is
              indigent;
       3.     whether appellant is entitled to a clerk’s record and reporter’s record, without
              charge to appellant;
       4.     whether appellant is entitled to appointed counsel;
       5.     if appellant has counsel, whether appellant has been denied the effective
              assistance of counsel arising from the delay encountered in prosecuting this
              appeal; and
       6.     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 clerk’s record will be promptly filed and that the
              appeal will be diligently pursued.


       If the court determines that appellant is indigent and has been denied the effective

assistance of counsel, we order it to appoint counsel for appellant.


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       We next order the court to cause a supplemental clerk’s record to be developed.

The supplemental clerk’s record shall include 1) a transcription of the hearing convened

to answer the questions itemized above, 2) findings of fact and conclusions of law

answering the questions itemized above, 3) the name, state bar number, and address of

any counsel appointed to represent appellant, and 4) all orders made in accordance with

this opinion. We further order the court to cause the supplemental clerk’s record to be filed

with the clerk of this court on or before November 1, 2004. Should additional time be

needed to comply with this order, the district court may request the same on or before

November 1, 2004.



                                          Per Curiam



Do not publish.




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