Order filed June 24 , 2014.

In The 

## Fourteenth Court of Appeals

____________ NO. 14

- 13

- 00256

- CR

____________ 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 reta i ned counsel, Andrew G. McGee

.

Appellant ’ s brief was originally due July 1, 2013

. The court granted extension s 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 extensi on 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 hi s 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
fi led.
On February 6, 2014, this court again abated the appeal for a nother 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 thirdtime. 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 co unsel’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. A ppellant has stated that he wishes counsel to remain on the appeal. Accordingly, we issue the f ollowing order.

We order Andrew G. McGee to file a brief with the clerk of this Court on or
before July 1 8 , 2014 . If counsel does not timely file appellant’s brief as ordered,
the c ourt will con sider 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.