                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-13-00310-CR


                            ADULFO CORTEZ, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 137th District Court
                                  Lubbock County, Texas
        Trial Court No. 2008-421,536, Honorable John J. "Trey" McClendon, Presiding

                                    February 25, 2014

                    ORDER OF ABATEMENT AND REMAND
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Appellant, Adulfo Cortez, filed notice of appeal from a judgment adjudicating him

guilty of the offense of aggravated assault with an affirmative finding of use or exhibition

of a deadly weapon, and sentence of seven years’ incarceration in the Institutional

Division of the Texas Department of Criminal Justice.          The appellate court clerk

received and filed the trial court clerk’s record on December 19, 2013. The official court

reporter filed the reporter’s record with the appellate court clerk on December 9.
Consequently, appellant’s brief was due to be filed on or before January 21, 2014.1 See

TEX. R. APP. P. 38.6. On January 28, this Court sent appellant notice that his brief was

past due. In that letter, this Court informed appellant that, if he failed to file his brief by

February 10, the appeal would be abated and the cause remanded to the trial court

without further notice. To date, appellant has not filed his brief nor responded to our

January 28 correspondence.


       Accordingly, we now abate this appeal and remand the cause to the trial court.

See TEX. R. APP. P. 38.8(b)(2).          The clerk’s record reflects that the trial court has

appointed Kelly Clark to represent appellant on appeal. 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 is indigent; (3) whether

present counsel for appellant has abandoned the appeal; (4) if appellant desires to

prosecute this appeal and is indigent, whether appellant=s present counsel should be

replaced; and (5) 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 trial 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.

       1
          Thirty days from the date that the clerk’s record was filed would be January 18. However,
January 18, 2014, was a Saturday. Thus, the deadline for filing appellant’s brief would be extended to
Monday, January 20, 2014. See TEX. R. APP. P. 4.1(a). However, as January 20, 2014 was a legal
holiday, appellant’s brief was due to be filed on January 21, 2014. See id.

                                                  2
      The trial court is directed to: (1) conduct any necessary hearings; (2) make and

file findings of fact, conclusions of law, and recommendations addressing the

determinations identified above 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. See 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 Thursday, March 27, 2014.




                                                      Per Curiam


Do not publish.




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