Motion Denied and Abatement Order filed March 15, 2016 

In The

Fourteenth Court of Appeals

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NO. 14-15-00645-CR

NO. 14-15-00646-CR

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BENNY MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause Nos. 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, 2015.

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 file a brief with the clerk 

of this court on or before March 1, 2016. We informed Patti Sedita that if the brief 

was not timely filed as ordered, the court 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 DENIED. 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 shall 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 failed 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 is 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 a 
recording 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 appeal 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 the 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 coordinator 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.
RULE 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 determine 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 Court 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. If 
the trial court has found that the appellant 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.