Order filed June 24, 2014.

In The

Fourteenth Court of Appeals

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NO. 14-13-00256-CR

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MILTON WHITING, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1365102

ORDER

A jury convicted appellant of aggravated sexual assault of a child and 

assessed punishment at confinement for sixty years in the Institutional Division of 

the Texas Department of Criminal Justice. On January 31, 2013, the trial court 

imposed a sentence in accordance with the jury’s verdict. Appellant filed a timely 

motion for new trial and notice of appeal. 
Appellant is represented on appeal by retained counsel, Andrew G. McGee. 

Appellant’s brief was originally due July 1, 2013. The court granted extensions of 

time to file appellant’s brief totaling 90 days, and we noted that no further 

extensions would be granted absent exceptional circumstances. No brief was filed.

Instead, counsel filed a further request for extension of time to file appellant’s 

brief, but he did not allege any exceptional circumstances in the request. On 

October 10, 2013, this court ordered counsel to file appellant’s brief on or before 

November 4, 2013. No brief was filed. Counsel requested a further extension of 

time, alleging that he was preparing for an annual criminal law assessment test 

scheduled for November 4, 2013. An extension was granted until November 22, 

2013. No brief was filed. On December 2, 2013, counsel and the trial court were 

notified that the brief was past due. Counsel filed no response.

On December 19, 2013, this court abated the appeal and directed the trial 

court to conduct a hearing to determine the reason for the failure to file a brief 

pursuant to Texas Rule of Appellate Procedure 38.8(b). On January 15, 2014, a 

record of the hearing was filed. At the hearing, counsel advised the court that the 

brief had not been filed because counsel was busy with two trial matters. Appellant 

confirmed to the court that he wished counsel to remain his attorney on appeal. 

Counsel assured the court that only minor portions of the brief needed to be 

completed and he would finish within five days. Accordingly, the appeal was 

reinstated and appellant’s brief was set due on January 21, 2014. No brief was 

filed. 

On February 6, 2014, this court again abated the appeal for another brief 

hearing. A record of the hearing was filed February 22, 2014. At the hearing, 

counsel informed the court he would file the brief in two days, by the following 

Monday, February 24, 2014. No brief was filed. The appeal was abated a third 
time. At the hearing on April 10, 2014, counsel informed the court that he had 

recently resolved a major driving-while-intoxicated case. Counsel again stated that 

a majority of the brief had been completed, and he said he could file the completed 

portion that day. Appellant advised the court that he wished Andrew McGee to 

remain as his counsel on appeal. The appeal was reinstated and appellant’s brief 

was set due. To date, no brief has been filed, and counsel has not responded to this 

court’s past due notice. It is now almost a full year past the original due date for 

appellant’s brief. The trial court has conducted three hearings, at which appellant 

was present by video teleconference, concerning counsel’s failure to file a brief. 

Counsel repeatedly has confirmed that he will file appellant’s brief, but despite 

repeated assurances no brief has been filed. Appellant has stated that he wishes 

counsel to remain on the appeal. Accordingly, we issue the following order.

We order Andrew G. McGee to file a brief with the clerk of this Court on or 

before July 18, 2014. If counsel does not timely file appellant’s brief as ordered, 

the court will consider the appeal without briefs. See Tex. R. App. P. 38.8(b)(4).

PER CURIAM

Panel consists of Chief Justice Frost and Justices Donovan and Brown.