NO. 07-03-0342-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 18, 2004
______________________________
JOSEPH EMILIO SAUCEDA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 9TH DISTRICT COURT OF MONTGOMERY COUNTY;
NO. 03-05-03403-CR; HONORABLE FRED EDWARDS, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
ORDER OF ABATEMENT AND REMAND
Appellant Joseph Emilio Sauceda has given notice of appeal from a conviction and
sentence in Cause No. 03-05-03403-CR in the 9th District Court of Montgomery County,
Texas (the trial court), for arson. The appellate court clerk received and filed the trial court
clerk’s record on July 25, 2003, and received and filed the trial court reporter’s record on
December 9, 2003.
This court has granted three extensions of the time for filing appellant’s brief. The
brief was due on April 13, 2004, pursuant to the most recent extension of time granted for
filing of the brief. On April 16, 2004, the appellate clerk received and filed a fourth motion
to extend the time for filing appellant’s brief.
Appellant’s fourth motion for extension of time for filing his brief is based on the
allegation that potential material witnesses not called at trial are incarcerated in the TDC-
Institutional Division, and are “believed to be housed in the Texas City and Edinburg
facilities. The great distance to these facilities has prohibited counsel from visiting these
witnesses.” The same basis was given for two prior motions, although prior motions also
were based on the assertion that one State’s exhibit was not attached to the reporter’s
record. Counsel has not demonstrated or set out any effort made to visit the referenced
witnesses, or to prosecute appellant’s appeal.
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, whether
appellant’s present counsel should be replaced; and (3) 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
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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
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 June 15, 2004.
Per Curiam
Do not publish.
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