                                   NO. 07-00-0373-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                   OCTOBER 18, 2000

                          ______________________________


                    JEANNETTE MITCHELL EMMERT, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

            FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

                NO. 7141; HONORABLE JERRY DAN HEFLEY, JUDGE

                         _______________________________

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


       On July 24, 2000, a copy of a Notice of Appeal in cause No. 7141 in the County

Court of Wheeler County, Texas (the trial court), was filed with the clerk of this court. The

Notice of Appeal gives notice that Jeanetta Emmert desires to appeal from a conviction

and sentence in such court and cause number. On August 8, 2000, a docketing statement

was filed with the clerk of this court which sets out that Jeannette Mitchell Emmert is the

appellant in this appeal, the State of Texas is the appellee, and that the appeal is from a

judgment dated July 11, 2000.
       On September 21, 2000, a request for extension of time for filing the clerk’s record

was filed with the clerk of this court. By such request, the County Clerk of Wheeler County

advised that the clerk’s record had not been paid for because a disagreement had arisen

as to whether the record had to be paid for by or on behalf of appellant. An extension of

time was granted for filing the clerk’s record until October 11, 2000. The clerk’s record has

not been filed.


       On October 16, 2000, the clerk of this court received a notice from the County Clerk

of Wheeler County that the clerk’s record has not been paid for, and that the record will

not be forwarded to the appellate court for filing. The clerk’s record in this court reflects

no other action by any party to the appeal to prosecute the appeal.


       Accordingly, this appeal is abated and the cause is remanded to the trial court.

TEX . R. APP . P. 37.3(a)(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

is entitled to have the clerk’s record furnished without charge; 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 clerk’s record will be promptly filed and

that the appeal will be diligently pursued. If the trial court determines that the present


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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

be included in a supplemental clerk’s record; (3) cause the hearing proceedings to be

transcribed and included in a reporter’s record; and (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 reporter’s record. In the absence of a request for extension of time from the

trial court, the supplemental clerk’s record, reporter’s record of the hearing and

proceedings pursuant to this order, 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 27, 2000.




                                                               Per Curiam


Do not publish.




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