Abatement Order filed October 17, 2019

In The 

## Fourteenth Court of Appeals

____________ NO. 14

- 19

- 00300

- CR

____________ LEVI MAYS , Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas Trial Court Cause No. 1526077

ABATEMENT ORDER
Appellant is represented by appointed counsel, Roy Smith. On September 30, 2019, 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). Couns el and the trial

court were notified on October 4, 2019, that no brief had been received. No response from appellant has been received.
Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of the 176th District Court shall (1) immed iate ly conduct a hearing, at whichappellant, 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 whe n 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 incl ude 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, a videotape or compact di sc, 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 November 18, 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 t he 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 th is 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

Panel Consists of Justices Jewell, Bourliot, and Zimmerer.R ULE 38. REQUISIT ES OF BRI EFS

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 a ppeal wit hout 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

mu st 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

ap propriate 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

C including any orde r and
fin dings

C 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 aga inst appe llant = 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 w ithout briefs, as justice may require.