Frank Martinez v. State

• Court: Court of Appeals of Texas
• Decided: August 8, 2002
• Docket: 07-02-00111-CR
• Status: Published

Opinion

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 364^TH 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 364^th 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.

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.