NO. 07-03-0126-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 16, 2003
______________________________
ERIC ZUNIGA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2001-438174; HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
ORDER OF ABATEMENT AND REMAND
Appellant, Eric Zuniga, has given notice of appeal from a conviction and sentence
in Cause No. 2001-438174 in the 140thth District Court of Lubbock County, Texas (the trial
court), for Delivery of a Controlled Substance. The appellate court clerk received and filed
the trial court clerk’s record on April 28, 2003, and received and filed the trial court
reporter’s record on July 14, 2003. By letter dated September 29, 2003, the appellate
clerk advised counsel for appellant that appellant’s brief was due on August 13, 2003, and
that neither the brief nor a motion for extension of time for filing of the brief had been
received. Counsel for appellant was further advised by such letter that if no response to
the letter was received prior to October 13, 2003, the appeal would be abated to the trial
court for hearing pursuant to TEX . R. APP . P. 38.8(b). No response to the clerk’s letter of
September 29, 2003, has been received.
Accordingly, this appeal is abated and the cause is remanded to the trial court.
TEX . R. APP . P. 38.8(b)(2). Upon remand, 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 prosecute this appeal; (2) if appellant desires to prosecute this appeal,
then 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 should be replaced; and (4) what orders, if any, should 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 replaced, the court
should cause the clerk of this court to be furnished the name, address, and State Bar of
Texas identification number of the newly-appointed or newly-retained attorney.
The trial court is directed to: (1) conduct any necessary hearings; (2) make and file
appropriate findings of fact, conclusions of law and recommendations, and cause them to
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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 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. TEX . R. APP . P. 38.8(b)(3). In the
absence of a request for extension 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 November 21, 2003.
Per Curiam
Do not publish.
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Eric Zuniga v. State
Combined Opinion