                                   NO. 07-03-0126-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                   OCTOBER 16, 2003

                          ______________________________


                              ERIC ZUNIGA, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2001-438174; HONORABLE JIM BOB DARNELL, JUDGE

                         _______________________________

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


                     ORDER OF ABATEMENT AND REMAND


       Appellant, Eric Zuniga, has given notice of appeal from a conviction and sentence

in Cause No. 2001-438174 in the 140thth District Court of Lubbock County, Texas (the trial

court), for Delivery of a Controlled Substance. The appellate court clerk received and filed

the trial court clerk’s record on April 28, 2003, and received and filed the trial court

reporter’s record on July 14, 2003. By letter dated September 29, 2003, the appellate
clerk advised counsel for appellant that appellant’s brief was due on August 13, 2003, and

that neither the brief nor a motion for extension of time for filing of the brief had been

received. Counsel for appellant was further advised by such letter that if no response to

the letter was received prior to October 13, 2003, the appeal would be abated to the trial

court for hearing pursuant to TEX . R. APP . P. 38.8(b). No response to the clerk’s letter of

September 29, 2003, has been received.


       Accordingly, 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,

then whether appellant is indigent, and if not indigent, whether counsel for appellant has

abandoned the appeal; (3) if appellant desires to prosecute this appeal, whether

appellant’s present counsel should be replaced; and (4) 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 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


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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 November 21, 2003.




                                               Per Curiam


Do not publish.




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