Motion Denied and Abatement Order filed March 15 , 2016

In The 

## Fourteenth Court of Appeals

____________ NO. 14

- 15

- 00645

- CR NO. 14

- 15

- 0064 6

- CR

____________ BENNY MARTINEZ , Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No s . 1404694 and 1405932

ABATEMENT ORDER
Appellant is represented by appointed counsel, Patti Sedita. Appellant ’ s brief was originally due September 25, 2015

. We have granted a total of 90 days to file appellant ’ s brief until December 28, 201 5

. 1 When we granted the last extension, we noted that no further extensions would be granted absent exceptional circumstances.

1 The motion for extension of time filed December 1, 2015, was ruled upon December 10, 2015, granting the request until December 28, 2015.No brief was filed. On January 25, 2016 , counsel filed a further request for extension of time to file appellant ’ s brief. Counsel ’s request asked for a further extension until March 1, 2016, on the grounds a supplemental record had been requested. We granted the request for extension and ordered Patti Sedita to f ile a brief with th e clerk
of this c ourt on or before March 1, 2016

. We informed Patti Sedita that if the brief was not timely filed as ordered, the c ourt would issue an order abating the appeal and directing the trial court to conduct a hearing to determine the reason for the failure to file the brief and the consideration of sanctions, appointment of new counsel, or other appropriate relief.
On February 26, 2016, Patti Sedita filed another motion for extension of time to file her brief, until April 8, 2016. The motion is D ENIED. Further, we enter the following order.
Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of the 232nd District Court shall (1) immediately conduct a hearing, at which appellant, appellant’s counsel, and state’s counsel shal l participate, either in person or by video teleconference, to determine (a) whether appellant desires to prosecute his appeal; (b) whether appellant is indigent; (c) if not indigent, whether appellant has abandoned the appeal or whether appellant has fail ed to make necessary arrangements for filing a brief; (d) the reason for the failure to file a brief; (e) if appellant desires to continue the appeal, a date certain when appellant’s brief will be filed; and (2) prepare a record, in the form of a reporter’ s record, of the hearing. If appellant is indigent, the judge shall take such measures as may be necessary to assure effective representation of counsel, which may include the appointment of new counsel. The judge shall see that a record of the hearing i s made, shall make findings of fact and conclusions of law, and shall order the trial clerk to forward a transcribed record of the hearing, a videotape or compact disc, if any, containing arecording of the video teleconference, and a supplemental clerk’s record containing the findings and conclusions. Those records shall be filed with the clerk of this court within thirty days of the date of this order

. The appeal is abated, treated as a closed case, and removed from this Court’s active docket. The appea l will be reinstated on this Court’s active docket when the trial court’s findings and recommendations are filed in this Court. The Court will also consider an appropriate motion to reinstate the appeal filed by either party, or the Court may reinstate th e appeal on its own motion. It is the responsibility of any party seeking reinstatement to request a hearing date from the trial court and to schedule a hearing in compliance with this Court’s order. If the parties do not request a hearing, the court coo rdinator of the trial court shall set a hearing date and notify the parties of such date.

PER CURIAM

Panel consists of Justices Jamison, Donovan and Brown.R ULE 38. REQUISITES OF BRIEFS

Tex. R. App. P. 38.8. Failure of Appellant to File Brief.
(b) Criminal Cases

. (1) Effect. An appellant ’ s failure to timely file a brief does not authorize either dismissal of the appeal or, except as provided in (4), consideration of the appeal without briefs.

(2) Notice

. If the appellant ’ s brief is not timely filed, the appellate clerk must notify counsel for the parties and the trial court of that fact. If the appellate court does not receive a satisfactory response within ten days, the court must order the trial court to immediately conduct a hearing to dete rmine whether the appellant desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether retained counsel has abandoned the appeal, and to make appropriate findings and recommendations.
(3) Hearing. In accordance with ( 2), the trial court must conduct any necessary hearings, make appropriate findings and recommendations, and have a record of the proceedings prepared, which record

– including any order and findings

– must be sent to the appellate court.
(4) Appellate Cour t Action

. Based on the trial court ’ s record, the appellate court may act appropriately to ensure that the appellant ’ s rights are protected, including initiating contempt proceedings against appellant ’ s counsel. Ifthe trial court has found that the appel lant no longer desires to prosecute the appeal, or that the appellant is not indigent but has not made the necessary arrangements for filing a brief, the appellate court may consider the appeal without briefs, as justice may require.