Abatement Order filed August 20, 2019

In The

Fourteenth Court of Appeals

____________

NO. 14-19-00083-CR

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JONATHAN GREEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 83259-CR

ABATEMENT ORDER

Appellant is represented by appointed counsel, Faye Gordon. Appellant’s 

brief was originally due April 11, 2019. We granted a total of 89 days to file 

appellant’s brief until July 9, 2019. When we granted the last extension, we noted 

that no further extensions would be granted absent exceptional circumstances. On 

July 2, 2019, counsel filed a further request for extension of another 90 days to file 

appellant’s brief. Counsel did not allege any exceptional circumstances in the 

request. We denied the motion on July 18, 2019 and ordered counsel to file 
appellant’s brief no later than August 9, 2019. We cautioned that if she did not timely 

file appellant’s brief as ordered, the court might 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. No brief has been filed.

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

the 412th 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 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 September 19, 2019.

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.