Abatement Order filed January 22, 2015.

In The 

## Fourteenth Court of Appeals

____________ NO. 14

- 14

- 00568

- CR

____________ MARCUS BROOKS , Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas Trial Co urt Cause No. 1408106



### ABATEMENT ORDER

Appellant is represented by appointed counsel, Kurt B. Wentz

. On
December 22 , 2014, time to file appellant’s brief expired without a brief
, and no
motion fo r extension of time was filed. See Tex. R. App. P. 38.6(a ). Counsel and the trial court were notified on December 30, 2014, that no brief had been received. Appellant filed no response

. 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 con duct 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 i ndigent, 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 appe llant’s brief will be filed; and (2) prepare a record, in the form of a repo rter’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 February 20, 2015.
The appeal is abated, treated as a clo sed case, and removed fr om this court’s
active docket. The app eal will be reinstated on this c ourt’s active docket when the trial court’s findings and rec ommendations are filed in this c ourt. The c ourt will also consider an appropriate motion to reinstate the appeal filed by either party, or
the c ourt 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 compl iance 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 CURIAMR ULE 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 fi led, 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 determ ine 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 record

C including any order and findings

C must be sent to the appellate court.

(4) Appellate Court Acti on

. 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 n o 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.