Miguel Angel Avelar v. State ( 2009 )

NO. 07-09-0013-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B APRIL 20, 2009 ______________________________ MIGUEL AVELAR AKA MICHAEL AVELAR, Appellant V. THE STATE OF TEXAS, Appellees ______________________________ FROM THE 140th DISTRICT COURT OF LUBBOCK COUNTY; NO. 2002-438,946; HON. JIM BOB DARNELL, PRESIDING _______________________________ ON ABATEMENT AND REMAND _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appellant Miguel Avelar aka Michael Avelar appeals from his conviction for the offense of aggravated sexual assault. On March 5, 2009, the clerk’s record was filed. The reporter’s record was due on March 9, 2009. On March 18, 2009, this Court notified the reporter by letter that the record had not been filed and to advise the Court of the status of the record on or before March 30, 2009. On March 24, 2009, the reporter filed a motion for extension of time to file the record, which was granted to April 8, 2009. On April 14, 2009, the reporter filed a second extension motion requesting until May 11, 2009, to file the record. Accordingly, we abate this appeal and remand the cause to the 140th 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: when the reporter’s record can reasonably be transcribed into written form and filed in a manner that does not further delay the prosecution of this appeal or have the practical effect of depriving the appellant of their right to appeal. The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings of fact and conclusions of law addressing the foregoing issues, 2) cause to be developed a supplemental clerk’s record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter, and 3) cause to be developed a reporter’s record transcribing the evidence and arguments presented at the aforementioned hearing, if any. Additionally, the district court shall then file the supplemental clerk’s and reporter’s records transcribing the hearing with the clerk of this court on or before May 20, 2009. Should further time be needed by the trial court to perform these tasks, then same must be requested before May 20, 2009. It is so ordered. Per Curiam Do not publish. 2