Jose Rodriguez, Jr. v. State ( 2005 )

NO. 07-05-0374-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
DECEMBER 6, 2005
______________________________
JOSE MARTINEZ RODRIGUEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 95-419,903; HON. CECIL PURYEAR, PRESIDING
_______________________________
ABATEMENT AND REMAND
__________________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Jose Martinez Rodriguez (appellant) appeals his conviction for delivery of marijuana.
The clerk’s record was filed on November 9, 2005. The court reporter requested an
extension of time to file the reporter’s record because appellant had yet to make
arrangements for its payment. The motion was granted, and the deadline was extended
to December 19, 2005. On November 17, 2005, we also directed appellant’s counsel to
certify to the clerk of this court whether appellant had complied with Texas Rules of
Appellate Procedure 34.6(b)(1) and 35.3(b)(3). The certification was due by November 28,
2005. To date, no response has been received.
Consequently, we abate the appeal and remand the cause to the 137th District
Court of Lubbock County (trial court) for further proceedings. Upon remand, the trial court
shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing
to determine the following:
1. whether appellant desires to prosecute the appeal; and
2. whether appellant is indigent and entitled to a free record.
If appellant is found to be neither indigent nor entitled to a free record, his continued
failure to arrange for payment of the reporter’s record will result in his appeal being
dismissed for want of prosecution. See Rodriguez v. State, 970 S.W.2d 133, 135 (Tex.
App.–Amarillo 1998, pet. ref'd). We further direct the trial court to issue findings of fact and
conclusions of law addressing the foregoing subjects. Furthermore, the trial court shall
also cause to be developed 1) a supplemental clerk’s record containing the findings of fact
and conclusions of law and 2) a reporter’s record transcribing the evidence and argument
presented at the aforementioned hearing. Additionally, the trial court shall cause the
supplemental clerk’s record to be filed with the clerk of this court on or before January 5,
2005. Should additional time be needed to perform these tasks, the trial court may request
same on or before January 6, 2005. Finally, the deadline by which the reporter’s record
is due is extended to January 5, 2005.
It is so ordered.
Per Curiam
Do not publish.
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