NO. 07-03-0342-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A MAY 18, 2004

______________________________ JOSEPH EMILIO SAUCEDA, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 9 TH DIST RICT COURT OF MONTGO MERY COUNTY; NO. 03-05-03403- CR; HONOR ABLE FRED ED WARDS, JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ORDER OF ABATEMENT AND REMAND Appellant

Joseph EmilioSauceda has gi ven notice o f appeal from a convict ion and sentence in Cause No. 03-05-03403-C R in the 9th District Court of Montgomery Coun ty, Texas (the trial court), for ar son. The appellate court clerk received and f iled the trial court clerk’s record on July25, 2003, and received and f iled the trial court reporter’s record on December 9, 2003.-2-

This court has granted thre e extensions of the time for fili ng appellant’s b rief. The brief was due on April 13, 200 4, pursuant to the most recent ex tension of time g ranted for filing of the brief. On Apri l 16, 2004, the appel late clerk received and filed a fourth motion to extend the t ime for filing appellant’s br ief. Appellant’s fourth motion for exte nsion of time f or filin g h is br ief is based on the allegation that potential material witnesses not ca lled at trial are incarcerated in the TDCInstitutional Division, and are “believed to be housed in the Texas City a nd Edinburg facilities. The great distance to these f acilities has prohibited counsel f rom visiting these witnesses .” The same basis w as giv en for

two prior motions, although prior motions also were b ased on the asser tion that one State ’s exhibi t was not at tached to the repor

ter ’ s record. Cou nsel has not demons trated or set out any effort made to v isit the re ferenced witnesses , or to prosec ute appellant’sappeal.
This appeal is abated and the cause isremanded to the trial court. T EX . R. A PP . P. 38.8(b)(2). Upon remand, the judge of the tri al court is directed to i mmedi ately cau se notice to be given of and to conduct a hear ing to deter mine: (1) whether appe llant desir es to prosecute this appea l; (2) if appel lant desiresto prosecute t his appeal, w hether appellant’s present counsel should be repl aced; and (3) what order s, if any, s hould be enter e d to assure the filing of approp riate notices and docume ntation to dismiss appellan t’s appeal if appellant does not desire to p rosecute this ap peal, or, if appellant desi res to prosecute this appeal, to assure thatthe appeal will be diligently pursued. If the trial court determines that the present attor ney for appellant should be repla ced, the court should-3-

cause the clerk of thi s court to be fur nished the name, addr ess, and State Bar o f Texas identification n umber of the newl y-appointed or newly -retained atto rney. The trial cour

t is direc ted to: (1)conduct any necessary hearings; (2) make and file appropriate findin gs of fact, conclusion s of law and recommendat ions, and cause them to be included in asupplemental cl erk’s record; (3) ca use the hearing proceedings to be transcribed and included in a suppleme ntal reporter’s record; (4 ) have a r ecord of the procee dings made to the extent any of the proceeding s are not inc luded in the supplemental clerk’s record or t he supplemental r eporter’s r

ecord; and (5)

cau se the records of the proceeding s to be sent to t hi s court. T EX . R. A PP . P. 38.8(b)(3). In the absence of a request for extension of time from the trial court, the su pplemental clerk’s record, supplemental re porter’s r ecord, and any

additional pr

oceeding records, inclu ding any orders, findi ngs, concl usions and recommendati ons, are t o be sent so as to be received by the cler k of this court not later than June 15, 2004.

Per Curiam Do not publish

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