NO. 07-01-0335-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A SEPTEMBER 6, 2001

______________________________ JEB PEMBERTON, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 181 ST DISTRIC T COURT O F POTT ER COUNTY; NO. 42,467-B; H ONORABLE JOH N B. BOARD, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS an d JOHNSON, JJ.
ON ABATEMENT AND REMAND Appellant

Jeb P emb erto n was co nvict ed, a fte r a ple a ofguilt y, of evading ar rest wi th
a vehicle and sentenced to con finement for two y ears in a sta te jail facil ity and a fine of $5,000. At the time sent ence was i mposed, appellant indicated he did not wish to appeal
or have counsel appointed to repr esenthim. Neve rtheless, appel lant filed a pro se notice2

of appeal on June 8, 2001. Appellant has ap parently now retained counsel, and we have received a certified copy of appellan t’s motion to dismiss his pro se notice of appeal and for a new tri al which was f iled by appellant’s counsel in the trial court. W e have also received a certified co py of the tri al court’s order gra nting that moti on on June 19, 2001.
Atimely filed notice of appeal vests jurisdiction in the Court of Appeals in a crimi nal
case. Curlin v. State , 881 S.W.2d 513, 515 (Tex.A pp.--Dall as 1994, no pet.). Rule 25.2(e) of the Rules of Appel late Procedur e providesthat all further proceedings

in the trial court
are suspended only

after the recor

d has been filed in the appellate c our t except as otherwise provided b y law or the rules, and the record has not yet been filed in thiscase. However, Rule of Appellat e Procedure 42.2( a) specifical ly prov ides that an appellant may vol u ntarilydismiss hi s appeal in a c riminal cas e by filing a writ ten withdr

awal w ith the appellate clerk. Ther

efore, a motion to dismiss an appeal should be directed to the Court of Appeals and not tothe trial court. See Rodriguez v. State , 697 S .W.2d 734, 735 (Tex.App.-- Corpus Christi 1985, pet ref’d); see also Zamora v.State , 568 S.W.2d 355, 356 n.1 (Tex.Cr im.App. 1978).
Furt hermore, an appellant’svoluntary dismissal of his appeal in a criminal c ase mus t be personally

signed b y appel lant. Tex. R . App. P. 42.2(a) . The motion to dis miss the notice of appeal filed in the trial court wa s not signed by

appellant. There fore, assuming arguendo we could take notice of the motion to dismis s the appeal, even though not filed in the proper court, without appell ant’s sig na ture, we ar e not authoriz ed to dismiss the appeal.3

We noti fi ed appel lant and his counsel by letter dated August 1 4, 2001, that if appellant

wished to dis m iss his appeal, he should file a m otion to dismiss with this court in accor dance Tex. R. App. P. 42.2(a). Howev er, we have receive d no response to that letter. This state of affairs requiresthat we abatethis appeal tothe trial court for a hearing to determine w hether appellant wishes to abandon his appeal , and i f not, whether his retained counsel will diligentl y pursue th e appeal. Accor dingly , this appeal i s abated and the cause remanded to the 181 st District Court of Potter County, Texas. Upon remand, the judge of the trial court shall immediat ely cause notice to be g iven and conduct a heari ng to determin e:
1. W hether appellant has ab andoned his appea l. 2. W hether his present attorney will diligently pursue the appeal. 3. If it be determine d that the present attorney w ill not dil igently pursue the appeal, wheth er ap pell ant i s pre sent ly indi gent , and if so , wh e ther other counsel should be appointed to rep resent him. 4. If it be determi ned that another attorney shoul d be appointed, the na me, address, an d State Bar of Texas identification number of the attorney appointed. 5. If appe llant is no t indigent and the present atto rney will not diligently pursue the appeal, w hat steps need to be taken to ensure that appellant will promptly obtain the services of anoth er attorney to pursue the appea l. 6. If any other orders are necessary to ensure the proper and timely pursuit of appellant’s app eal. In support of its determ inations, the trial court will prepare and fil e written f indings of fact and conclusi ons of law and cause them to be included in a supplemen tal clerk’s4

record. The hearing proceedings shall be transcribed an d included in a supplemental reporter’s record. The s upplemental cler k’s and repor ter’s reco rds shall b e submitted to the clerk of thi s court no la ter than October 15, 2001.
It is so or

dered.
Per Curiam Do not publish

.