Abatement Order filed September 10, 2013. 

In The

Fourteenth Court of Appeals

____________

NO. 14-13-00148-CR

____________

EX PARTE DIANA E. RODRIGUEZ

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 05-DCR-043094

ABATEMENT ORDER

Appellant filed a notice of appeal from the denial of her application for writ 

of habeas corpus, which was filed pursuant to article 11.072 of the Texas Code of 

Criminal Procedure. Appellant is represented by retained counsel, Eduardo Jesus 

Franco. No reporter’s record has been filed in this case. Karen Romeo Rothman, 

the official court reporter for the 400th District Court, informed this court that 

appellant had not made payment arrangements for preparation of the reporter’s 

record. 

On April 22, 2013, the clerk of this court notified appellant that we would 

consider and decide those issues that do not require a reporter’s record unless 

appellant, within 15 days of notice, provided this court with proof of payment for 
the record. See Tex. R. App. P. 37.3(c). Appellant filed no reply. Accordingly, on 

May 30, 2013, we ordered counsel to file a brief without the benefit of a reporter’s 

record. 

No brief was filed. On July 15, 2013, this court notified appellant that the 

brief was past due. No response was filed. We may not dismiss the appeal or 

decide the appeal without a brief unless the trial court makes findings that 

appellant has abandoned the appeal by failing to make arrangements to file a brief. 

See Tex. R. App. P. 38.3(b)(1). 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 400th 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) 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 October 1, 2013, 

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
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.