Abatement Order filed January 13, 2015 

In The

Fourteenth Court of Appeals

NO. 14-14-00687-CR

GERALD GERROD DARBY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1384358

ABATEMENT ORDER

Appellant is represented by appointed counsel, Joe David Wells. On 

November 21, 2014, 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 November 25, 2014, 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 230th 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, 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 within thirty days of the date of this order.

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 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.