Abatement Order filed October 15, 2015

In The 

## Fourteenth Court of Appeals

____________ NO. 14

- 14

- 01011

- CR

____________ MARGARET RENEE MAYER , Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas Trial Court Cause No. 1416618

ABATEMENT ORDER
Appellant is represented by appointed counsel, Cheri Duncan

. On September 22, 2015, counsel’s request for further extension of time to file appellant’s brief was denied and counsel was ordered to file a brief with the clerk of this court on or before October 9, 2015. The order notified counsel that if appellant’s brief was not filed as ordered, this court would issue an order abating the appe al and directing the trial court to conduct a hearing to determine the reasonfor the failure to file the brief and the consideration of sanctions, appointment of

new counsel, or other appropriate relief. As of this date no brief has been filed.

Pursuant t o Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of the 230th 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 teleconferen ce, 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 l aw, 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 r ecords shall be filed with the clerk of this court within thirty days of the date of this order

. 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 notrequest a hearing, the court coordinator of the trial court shall set a hearing date

and notify the parties of such date.

PER CURIAM

Panel consists of Justices Jamison, McCally and Wise.R 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 filed, the appellate clerk must notify counsel for the part ies 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, ma ke 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 Action

. Based on the trial court = s record, the appellate cou rt may act appropriately to ensure that the appellant = s rights are protected, including initiating contempt proceedings against appellant = s counsel. Ifthe trial court has found that the appellant no longer desires to prosecute the

appeal, or that the app ellant 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.