                                    NO. 07-03-0342-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                        MAY 18, 2004

                           ______________________________


                        JOSEPH EMILIO SAUCEDA, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

          FROM THE 9TH DISTRICT COURT OF MONTGOMERY COUNTY;

            NO. 03-05-03403-CR; HONORABLE FRED EDWARDS, JUDGE

                          _______________________________

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


                      ORDER OF ABATEMENT AND REMAND


       Appellant Joseph Emilio Sauceda has given notice of appeal from a conviction and

sentence in Cause No. 03-05-03403-CR in the 9th District Court of Montgomery County,

Texas (the trial court), for arson. The appellate court clerk received and filed the trial court

clerk’s record on July 25, 2003, and received and filed the trial court reporter’s record on

December 9, 2003.
       This court has granted three extensions of the time for filing appellant’s brief. The

brief was due on April 13, 2004, pursuant to the most recent extension of time granted for

filing of the brief. On April 16, 2004, the appellate clerk received and filed a fourth motion

to extend the time for filing appellant’s brief.


       Appellant’s fourth motion for extension of time for filing his brief is based on the

allegation that potential material witnesses not called at trial are incarcerated in the TDC-

Institutional Division, and are “believed to be housed in the Texas City and Edinburg

facilities. The great distance to these facilities has prohibited counsel from visiting these

witnesses.” The same basis was given for two prior motions, although prior motions also

were based on the assertion that one State’s exhibit was not attached to the reporter’s

record. Counsel has not demonstrated or set out any effort made to visit the referenced

witnesses, or to prosecute appellant’s appeal.


       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, 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



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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

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 June 15, 2004.




                                                  Per Curiam


Do not publish.




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