NO. 07-04-0347-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B OCTOBER 28, 2004

______________________________ IN THE MATTER OFTONY GIBBS

_________________________________ FROM THE 1 37TH DI STRICT COURT OF LU BBOCK COU NTY; NO. 2003-760,757; HONORABLE M ARK C. HALL, JUDGE

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBE LL, JJ. ORDER OF ABA

TEMENT AND REMAND Appellant

Ton y G ibb s, Jr., has given not ice of appeal from a j udgment that he engaged in delinquent conduct. The ap pellate court clerk received and filed the trial court clerk’s r ecord on Augus t 16, 2004, and received and filed the trial court reporter’s record on August 17, 200 4. Appellant

has timely

filed a notice o f appeal, an d the trial court has cert ified that appellant

has the rig ht of appeal. Furt her, the trial cour t has found appellant indi gent and appointed appellate couns el. Appe lla nt’s bri ef was due on September 16, 2004. On-2-

September

27, 2004, this court sent notice to appellant’s cou nsel that

the brief had not been filed. This noti ce further dir ected that appell antfile a response by October 7, 2004, reaso nably explaining the failure to fil e a brief. T EX . R. A PP . P. 38.8. Appell ant has not responded to the not ice. Acco rdin gly, we abate the appeal and remand thecause to the tr ial court. T EX . R. A PP . P. 38.8(a)(2). Upon remand, the judge of the trial court is di rected to immediately cause notice to be g iven of and to conduct a hearing to determine: (1) whether appe llant desires to prosecute this appeal; (2) if appellant desi res to prosec ute this appeal, whether appointed counsel for ap pellant has abandone d the appeal; (3) if appellant desi res to prosecute this appeal, whether appellant’s presen t counsel should be replaced; and (4) what orders, i f any, should be entered to assur e the filing of appropriate noti ces and documentation to dismiss appellant’s appeal if ap pellant does not desire to prosecute this appeal, or, if

appellant desi res to prosec ute this appeal, to assure that the appeal will be diligently purs ued . If t he tr ial co urt d eter mine s tha t the pres ent a ttor ney f or ap pellant should be replaced, the court should cause th e clerk of this court to be furni shed the name, address, and State Bar of Te xas identifica tion num ber o f th e newl y-app oint ed or newlyretained attor ney. The trial court is di rected to: (1) conduct any necessary hearings; (2) make and file appropriate findings of

fact, conclusi ons of law and r ecommendations, and ca use them to be included in asupplemental cl erk’s record; (3) ca use the hearing proceedings to be transcribed and i ncluded in a supplemental r eporter’s r

ecord; (4) have a recor d of the procee dings made to t he ex tent any of t he proceedingsare not incl uded in the-3-

supplemental clerk’s record or t h e supplemental repor ter’s reco rd; and (5) cause the r ecords of the proceed ings to be sent to t his court . In the a bsence of a requ est fo r extension of time from the tria l court, the supplemen tal c lerk’s r ecord, supplementa l reporter’s record, and any additional proceedin g re cords, in cluding a ny orders, findin gs conclusionsand recommendations, are to be sent so as to be received by the clerk of this court not later

than November

24, 2004. Per Curiam