Abatement Order filed September 18, 2018

In The

Fourteenth Court of Appeals

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NO. 14-17-00878-CR

NO. 14-17-00879-CR

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KRISTI RHODES DELAGARZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Court at Law No. 2

Galveston County, Texas

Trial Court Cause Nos. MD-0365736 and MD-0365735

ABATEMENT ORDER

Appellant’s appointed counsel, James M. Bennett, filed a brief on March 30, 

2018, raising a single issue related to appellant’s conviction in trial court cause 

number MD-0365736 (appeal number 14-17-00848-CR) for driving while 

intoxicated. Bennett did not raise a separate issue challenging appellant’s conviction 

in trial court cause number MD-0365735 (appeal number 14-17-00849-CR) for 

possession of less than 28 grams of a controlled substance in Penalty Group 3. 

Counsel’s failure to raise any issues addressing the evading arrest or detention with 
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previous conviction without following the procedures of Anders v. California, 386 

U.S. 738, 742–44 (1967), deprives appellant of effective assistance of counsel.

On July 24, 2018, we ordered Bennett to file an amended brief in compliance 

with the appellate rules and the Anders procedure in this court by August 23, 2018.

We notified the parties on August 28, 2018, that no brief had been filed. No response 

has been received.

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

County Court at Law No. 2 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 

her appeals; (b) whether appellant is indigent; (c) if not indigent, whether appellant 

has abandoned the appeals or whether appellant has failed to make necessary 

arrangements for filing an amended brief that complies with Anders; (d) the reason 

for the failure to file an amended brief; (e) if appellant desires to continue the 

appeals, a date certain when appellant’s amended 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 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 

October 18, 2018.

The appeals are abated, treated as closed cases, and removed from this court’s 

active docket. The appeals 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 
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consider an appropriate motion to reinstate the appeals filed by either party, or the 

court may reinstate the appeals 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
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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.