Abatement Order filed October 30, 2014

In The 

## Fourteenth Court of Appeals

____________ NO. 14

- 14

- 00179

- CR

____________ MATTHEW JOSEPH OLIVE IRA , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the Co unty Crim inal C our t at Law No

. 7

Harris County, Texas Trial Court Cause No. 1934280



### ABATEMENT ORDER
Appellant is not represented by counsel. No reporter’s record or brief has been filed. The trial court has previously determined that appellant is not indigent for purposes of a free record . Rule 38.8 provides that we will not dismiss or consider the appeal without a reporter’s record or brief unless it is shown the appellant no longer desires to prosecute his appeal or that he is not indigent and has failed to make necessary ar rangeme nts for filing a brief. Tex. R. App. P. 38.8.On September 23, 2014 , this court ordered appellant to file a brief on or

before October 23 , 2014. No brief was filed. Accordingly, we issue the following
order:
Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge
of the County Criminal Court at Law No. 7 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) wh ether 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
fa ilure 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 w ith the clerk of this court on or before December 1 , 2014

. 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 recomme ndations 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 re quest a hearing date from the trial court and toschedule 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 CURIAMR 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 r esponse 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 abandone d 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, whi ch 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 i nitiating 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 necessaryarrangements for filing a brief, th e appellate court may consider the appeal without

briefs, as justice may require.