NO. 07-09-0283-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B FEBRUARY 10, 2010

__________________________ RODNEY CARROLL KEELING, APPELLANT V. THE STATE OF TEXAS, APPELLEE

____________________________ FROM THE 251 ST DISTRICT COURT OF RANDALL COUNTY; NO. 20539-C; HONORABLE ANA ESTEVEZ, JUDGE

____________________________ Before QUINN, C.J., a nd CAMPBELL and HANCOCK, JJ.

ORDER OF ABATEMENT AND REMAND Appellant, Rodney Carroll Keelin g, filed a notice of appeal from his conviction for driving while intoxicated and enhanced sent ence of 10 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 October 20, 2009, and the trial court reporter = s record was received and filed on No vember 13, 2009. Appellant moved for an extension of time to file hi s brief, which was granted, making appellant = s brief due on or before January 13, 2010. Appellant did not file his br ief or request an extension oftime to file his brief by this deadline. Consequently, on January 20, 2010, this Court sent appellant notice that, pursuant to Texas Rule of Appellate Pr ocedure 38.8, failure to file his brief by February 1, 2010 ma y result in the appeal being abated and remanded without further notic e. As of the date of this order, appellant has failed to file his brief. Accordingly, we now abate this appeal and remand the cause to the trial court. See T EX

. R. A PP

. P. 38.8(b)(2). Upon rema nd, 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 pr osecute this appeal; (2) if ap pellant desires to prosecute this appeal, 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 = s present counsel shoul d be replaced; and (4) w hat orders, if any, should be entered to assure the filing of appropr iate 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 det ermines that the present atto rney for appellant should be replaced, the court should cause the Clerk of this Court to be furnished the name, address, and State Bar of Texa s identification number of t he newly appointed or newly retained attorney. The trial court is directed to: (1) conduc t any necessary hearings; (2) make and file appropriate findings of fact, conclusi ons of law, and reco mmendations 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 23 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 T EX

. R. A PP

. P. 38.8(b)(3). In the absence of a request for extension of ti me from the trial co urt, 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 C ourt not later than March 9, 2010.

Per Curiam Do not publish.