                                  NO. 07-02-0111-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                    AUGUST 8, 2002

                         ______________________________


                       FRANK JAMES MARTINEZ, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

        NO. 2001-436826; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

                         _______________________________

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


                            ON ABATEMENT AND REMAND


      Appellant Frank James Martinez appeals from his conviction after a guilty plea of

aggravated assault with a deadly weapon and the resulting jury-assessed punishment of

12 years confinement in the Institutional Division of the Department of Criminal Justice.

We have received the clerk’s and reporter’s records in this matter, but nothing further has
been done to prosecute the appeal. By letter dated July 23, 2002, we informed appellant

that his brief was due to be filed on July 1, 2002, but we had received neither a brief nor

a motion for extension of time to file a brief. We further notified appellant that if no

satisfactory response to the letter was received by August 5, 2002, the appeal would be

abated to the trial court. No response has been received.


       This state of affairs requires us to abate the appeal to the trial court for a hearing

as provided by Texas Rule of Appellate Procedure 38.8(2). Accordingly, this appeal is

abated and the cause remanded to the 364th District Court of Lubbock County. Upon

remand, the judge of the trial court shall immediately cause notice to be given and conduct

a hearing to determine:


       1. Whether appellant has abandoned his appeal.

       2. If appellant has not abandoned his appeal, whether his present appellate
       attorney will diligently pursue the appeal and what steps, if any, should be
       taken to ensure that diligence.

       3. If it be determined that the present attorney will not diligently pursue the
       appeal, whether appellant is presently indigent, and if so, whether other
       counsel should be appointed to represent him.

       4. If it be determined that another attorney should be appointed, the name,
       address, and State Bar of Texas identification number of the attorney
       appointed.

       5. If any other orders are necessary to ensure the proper and timely pursuit
       of appellant’s appeal.




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      In support of its determinations, the trial court will prepare and file written findings

of fact and conclusions of law and cause them to be included in a supplemental clerk’s

record. The hearing proceedings shall be transcribed and included in a supplemental

reporter’s record. The supplemental clerk’s and reporter’s records shall be submitted to

the clerk of this court no later than September 9, 2002.


      It is so ordered.


                                                  Per Curiam


Do not publish.




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