Abatement Order filed November 8 , 2012

.

In The 

## Fourteenth Court of Appeals

____________ NO. 14

- 12

- 00271

- CR

____________ ROGER MILLICAN , Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the Co unty Crim inal C our t at Law No 9

Harris County, Texas Trial Court Cause No. 1786137



### ABATEMENT ORDER

Appellant is represented retain ed counsel, Gregg Clements

. The reporter’s record was filed on May 25, 2012. On June 25, 2012 , time to file appellant’s brief expired without a brief and no motion for ext ension of time was filed. See Tex. R. App. P. 38.6(a). Counsel and the trial court were notified on June 27, 2012 , that no brief had been received. Appellant did not respond. Accordingly, on August 2, 2012 , p ursuant to Tex. R. App. P. 38.8(b) , this court a bated the appeal and ordered the trial to conduct a hearing to determine why appellant’s brief had not been filed. On August 17, 2012, appellant filed a motion for extension of time to file his brief. The court granted the extension request until September 21, 2012, and withdrew the order for an abatement hearing. No brief was2

filed. Counsel and the trial court were notified on September 25 , 2012, that no brief had been received. Appellant did not respond. APPELLANT’S BRIEF WAS DUE OVER FIVE MONTHS AGO. Acc ordingly, the court issues 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. 9 shall (1) immediately conduct a hearing, at which appellant, appellant’s counsel, and stat e’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 ap pellant 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 for m 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 d isc, 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 December 7 , 2012.
The appeal is abated, treat ed as a clos ed case, and removed from this c ourt’s active docket. The app eal will be reinstated on this c ourt’s active docket when the trial court’s findings and recommendations are filed in this court. The c ourt will also consider an appropriate motion t o reinstate the appeal filed by either party, or the c ourt 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 h earing in compliance with this c ourt’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 CURIAM3

Rule 38. REQUISITES OF BRIEFS
Tex. R. App. P. 38.8. Failure of Appellant to Fi le 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 hea ring 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 accor dance 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

C including any order and findings

C must be sent to the appellate court.
(4) Appell ate 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 t he 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.