Abatement Order filed March 6, 2012. 

In The

 

Fourteenth Court of Appeals

____________

NO. 14-11-01029-CR

____________

MAXIMO GARZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1288955

ABATEMENT ORDER

Appellant is represented by appointed counsel, Patricia Sedita. On January 27, 

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 

January 31, 2012, 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 

262nd 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 on or before April 3, 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
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.