Abatement Order filed November 8, 2012. 

In The

Fourteenth Court of Appeals

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NO. 14-12-00271-CR

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ROGER MILLICAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No 9

Harris County, Texas

Trial Court Cause No. 1786137

ABATEMENT ORDER

Appellant is represented retained 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 extension 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, pursuant to Tex. R. 

App. P. 38.8(b), this court abated 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 was 
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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. Accordingly, 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 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. 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 December 7, 2012.

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.