NO. 07-10-00152-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C JULY 15, 2011

KANAYO EUGENE UBESIE, JR., APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE COUNTY COURT OF NAVARRO COUNTY;

NO. 61,354; HONORABLE JO HN JACKSON, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

ORDER OF ABATEMENT AND REMAND
Appellant, Kanayo Eugene U besie, Jr., filed a notice of appeal from his conviction for driving while intoxicated, and sentence of 180 days incarceration in the Navarro County Jail and $1,000 fine. Sentence was suspended by the trial court and appellant was placed on community supervi sion for a period of two years. The appellate court clerk received an d filed the trial court clerk = s record on April 30, 2010. The official court reporter’s record was f iled on June 7. Consequen tly, appellant’s brief was due on July 8. On July 7, this Court received appel lant’s request for extension of time to file his brief, which was granted to extend the deadline fo r appellant’s brief to2 August 6. On August 16, appell ant filed a second request for extension of time to file his brief. Again, this request was granted a nd the deadline for appel lant’s brief was set on September 7. Just befor e the September 7 deadline, appellant’s counsel sought permission to withdraw from representation of appellant. This Cour t granted counsel’s motion. As a result, appellant filed a pro se motion for extension of ti me to file his brief on September 13, which this Court granted. On September 17, this Court entered an Order abating and remanding the cause because the trial court’s certification of defendant’s right of appeal was defective. The appeal was re instated on October 28. On November 23, this Court gr anted appellant’s fourth reques t for extension of time to file his brief, extending the deadline to Dece mber 23. On January 3, 2011, this Court sent appellant notice that his brief was past-due and directing him to file his brief by January 13 or the appeal would be abated and remanded to the trial court. On January 6, newly retained counsel fo r appellant filed a request for extension of time to file appellant’s brief, which was granted to Januar y 24. However, afte r appellant failed to meet this deadline, he was notif ied that failure to file his brief by February 10 may result in the appeal being abated an d remanded. On February 3, appellant filed another request for extension of time to file his br ief on the basis that he had discovered that certain necessary exhibits had been omitted from the reporter’s record . This motion for extension of time was granted and the deadli ne for appellant’s brief was extended to February 14. Appellant again failed to comp ly with the deadline set by this Court and, on March 11, appellant requested yet another extensi on of time to file his brief. By letter dated March 15, this Court denied this sixth request for extension of time to file appellant’s brief and directed appe llant to file his brief on or before March 20.3 No brief having been filed for appellant by April 8, we abated this appeal and remanded it to the trial court to determi ne whether appellate counsel had abandoned the appeal. After a hearing, the trial court entered findings of fact and conclusions of law. The trial court found that appellant’s counsel had been seriously ill with an undiagnosed complaint which prevented him fr om completing the brief and that the illness had recurred several times, but that counsel anticipated that he would complete the brief within 10 days. Furt her, in the event of a recu rrence of counsel’s illness, counsel had engaged another attorney to assist in the prepar ation of the brief. The trial court also recommended that the filing of the brief should be required by the last day of May 2011 and that the absence of such filing sh ould result in the dismissal of the appeal, forfeiture of appellant’s appeal bond, and the issuance of a capias for the arrest of appellant.
On May 10, 2011, the appeal was reinstated. In the letter informing appellant of the reinstatement of the case, this Court no tified appellant that his brief was due on or before May 31, 2011, and that failure to comp ly with this deadline may result in the appeal being considered without briefs. When, once again, appellant ’s brief was not received by this May 31 deadline, this Cour t sent appellant notice on June 16, informing him that his failure to file his brief by June 27 may result in the appeal being abated and remanded to the trial court for further proceedings . To date, this Court has not received appellant’s brief nor any respons e to our June 16 correspondence.
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 to4 immediately cause notice to be given requ iring appellant to per sonally appear and to then conduct a hearing to deter mine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, whether appellant is indigent; (3) if appellant desires to prosecute th is appeal and is indigent, whether appellant = s present counsel should be replaced; (4) whether present counsel for appellant has abandoned the appeal; and (5 ) what orders, if any, shoul d be entered to assure the filing of appropriate 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 determines that the present attorney for appellant should be replac ed, the trial court should cause the Clerk of this Court to be furnished the name, add ress, and State Bar of Texas identification number of the 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 fa ct and conclusions of law 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 the proceedings made to the extent any of the proceedings ar e not included in the supplemental clerk = s record or the supplemental reporter = s record; and (5) cause the re cords of the proceedings to be sent to this Court. In t he absence of a request for extens ion of time from the trial court, 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 Court not later than August 15, 2011.5 It is so ordered.

Per Curiam

Do not publish.