Abatement Order filed October 16, 2014

 

In The

Fourteenth Court of Appeals

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NO. 14-13-00512-CR

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RONALD CROW, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

Washington County, Texas

Trial Court Cause No. 16373

ABATEMENT ORDER

Appellant is represented by retained counsel, Sylvia Cedillo. No reporter’s 

record or brief has been filed. The trial court has previously determined that 

appellant is not indigent for purposes of a free record or appointment of counsel on 

appeal. Rule 38.8 provides that we will not dismiss or consider the appeal without 

a reporter’s record or brief unless it is shown the appellant no longer desires to 
prosecute his appeal or that he is not indigent and has failed to make necessary 

arrangements for filing a brief. Tex. R. App. P. 38.8. 

A hearing has already been held as required under Rule 38.8. At that 

hearing, the trial court found that appellant is not indigent. On May 30, 2014, this 

court ordered appellant to make sufficient payment for the reporter’s record and to 

file the record on or before July 3, 2014. On July 7, 2014, Wendy L. Kirby, the 

official court reporter for the 21st District Court notified this court that the 

payment she received is insufficient as a deposit toward the reporter’s record.

Because the trial court has already held one hearing to make the findings required 

under Rule 38.8, and we can find nothing in the rules or case law that requires this 

court to send this matter back to the trial court a second time, we decline to do so. 

On July 10, 2014, this court ordered appellant to file a reporter’s record in 

this appeal on or before August 14, 2014. On August 18, 2014, Wendy L. Kirby, 

the official court reporter for the 21st District Court notified this court that the 

payment she received is still insufficient as a deposit toward the reporter’s record.

On August 21, 2014, this court ordered appellant to file a brief on or before 

September 22, 2014. No brief was filed. Accordingly, we issue the following 

order:

Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge 

of the 21st 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 November 18, 2014.

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 record -- including any order and 

findings -- must 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.