                                  NO. 07-05-0248-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  OCTOBER 19, 2005

                          ______________________________


                        JAMES RAYMOND BECK, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

         FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY;

                 NO. 0897673; HONORABLE BILLY D. MILLS, JUDGE

                         _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.


                             ABATEMENT AND REMAND


      Following a plea of not guilty, appellant James Raymond Beck was convicted by a

jury of driving while intoxicated. Having elected assessment of punishment by the trial

court, appellant was sentenced to 120 days confinement and a $550 fine, suspended for

24 months. Appellant timely perfected this appeal. The clerk’s record and reporter’s record
have both been filed. Appellant’s brief was due to be filed on September 19, 2005, but has

yet to be filed. Also no motion for extension of time was filed. By letter dated September

27, 2005, this Court notified appellant’s retained counsel, Danny Burns, of the defect and

also explained that if the brief or a response was not received by October 7, 2005, the

appeal would be abated pursuant to Rule 38.8(b) of the Texas Rules of Civil Procedure.

Counsel did not respond and the brief remains outstanding.


      Therefore, we now abate this appeal and remand the cause to the trial court for

further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate

Procedure. 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 now indigent and entitled to appointed counsel;

      3.     whether retained counsel for appellant has abandoned the appeal;
             and

       4.    whether appellant has been denied effective assistance of counsel
             given counsel’s failure to file a brief.


The trial court shall cause a hearing to be transcribed. Should it be determined that

appellant does want to continue the appeal, then the trial court shall 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


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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 Monday,

November 28, 2005.


       It is so ordered.

                                                    Per Curiam

Do not publish.




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