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Abatement Order filed January 8, 2013. 

In The

Fourteenth Court of Appeals

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NO. 14-11-00838-CR

NO. 14-11-00839-CR

NO. 14-11-00840-CR

NO. 14-11-00841-CR

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FREDRICHEE DOUGLAS SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause Nos. 1197969, 1197970, 1208812, & 1255072

ABATEMENT ORDER

Appellant is represented by retained counsel, Abraham M. Fisch. On May 4, 

2012, time to file appellant’s brief expired without a brief or motion for extension 

of time. See Tex. R. App. P. 38.6(a). Counsel and the trial court were notified on 

May 8, 2012, that no brief had been received. No response from appellant was 

received. Accordingly, on May 24, 2012, we abated the appeal and directed the 
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trial court to conduct a hearing to determine why appellant’s brief had not been 

filed.

The hearing was held on August 30, 2012, and a record of the hearing was 

filed in this court on September 5, 2012. At the hearing, counsel for appellant 

explained to the trial court that he had experienced the death of a close family 

member in January and was unable to work for several months. He assured the 

court that he had returned to work and would complete appellant’s brief in ninety 

days. He also stated that appellant wished to continue his appeal despite the fact 

that he had completed his sentences in these cases. Even though a ninety-day 

extension is much longer than the court’s usual procedures, the court considered 

counsel’s circumstances. Accordingly, we reinstated the appeal and set appellant’s 

brief due November 28, 2012, ninety days after the hearing.

Appellant’s brief was not filed by the extended due date, and no motion for 

extension of time was filed. Counsel and the trial court were notified on December 

4, 2012, that no brief had been received. No response from appellant was received.

The court has allowed additional time due to the holiday season in which to file 

appellant’s brief and it has not been filed. Appellant’s brief is now eight months 

past due. It appears to the court that appellant has abandoned the appeal or failed 

to make necessary arrangements for filing a brief. Therefore, we are required to 

issue the following order:

Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge 

of the 339th 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 has abandoned the appeal or failed to make 
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necessary arrangements for filing a brief; (c) the reason for the failure to file a 

brief; (d) 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. 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 on or before February 7, 2013.

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
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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 recordCincluding any order and 

findingsCmust 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.