
NO. 07-04-0542-CR

IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL E


SEPTEMBER 29, 2005


______________________________



PRESTON WOOD, APPELLANT


V.


THE STATE OF TEXAS, APPELLEE



_________________________________


FROM THE 47TH DISTRICT COURT OF ARMSTRONG COUNTY;


NO. 1031; HONORABLE HAL MINER, JUDGE


_______________________________


Before QUINN, C.J., and REAVIS, JJ, and BOYD, S.J. (1)
ABATEMENT AND REMAND

	Following a not guilty plea, a jury convicted appellant Preston Wood of indecency
with a child and punishment was assessed at 20 years confinement and a $10,000 fine. 
Sentence was imposed on October 26, 2004.  The reporter's record was filed on December
20, 2004, and the clerk's record was filed on March 30, 2005.  
	Appellant is incarcerated, and his brief was originally due on April 29, 2005.  Two
extensions of time were granted, and then by letter dated July 6, 2005, a third extension
was granted but a request to order the court reporter to prepare a supplemental reporter's
record from a previous trial that resulted in mistrial was denied.  After the third briefing
deadline expired, by order dated August 29, 2005, the court reporter was granted an
extension of time to file the supplemental record to September 8, 2005, if authorized by the
trial court, and a fourth extension of time to file appellant's brief was granted to September
19, 2005.  Appellant was notified that failure to timely file the brief would result in the appeal
being abated and the caused remanded for further proceedings.
	On September 19, 2005, the court reporter forwarded to this Court a copy of a letter
to appellant's counsel dated September 15, 2005, indicating she was still awaiting
instructions on what portions of the record to prepare.  The reporter also communicated to
the Clerk of this Court that as of September 27, 2005, she had not received any response
from counsel.  Also, no action has been taken by counsel in this Court since August 15,
2005.  The supplemental reporter's record and appellant's brief remain outstanding.  Thus,
we now abate the appeal and remand the cause to the trial court for further proceedings
pursuant to Rules 37.3(a)(2) and 38.8(b).
 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;
	2.	whether appellant is entitled to a free supplemental reporter's record
of a trial that resulted in mistrial, and if so, whether counsel has
requested preparation; and
	3.	when counsel anticipates filing of appellant's brief given the lapse in
time since the appeal was perfected on November 19, 2004.

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.  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 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, October 28, 2005.
 It is so ordered.

	Per Curiam

Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
