Opinion
NO. 14-17-00620-CR
10-05-2017
IRVIN AUTREY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas
Trial Court Cause No. 1418132
ABATEMENT ORDER
Appellant is not represented by counsel. On September 1, 2017, time to file appellant's brief expired without a brief and no motion for extension of time was filed. See Tex. R. App. P. 38.6(a). Appellant was notified on September 13, 2017, that no brief had been received. No response from appellant has been received. This court is unaware if appellant is, at this time, entitled at this time to proceed without the payment of costs. Accordingly, we enter the following order.
Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached), the judge of the 185th District Court shall immediately conduct a hearing at which appellant and counsel for the State shall participate, either in person or by video teleconference, to determine if appellant desires to prosecute his appeal, and, if so, if appellant is indigent and, thus entitled to appointed counsel on appeal. The judge may appoint appellate counsel for appellant if necessary. If appellant is not indigent, the judge shall determine if appellant abandoned the appeal or if he has failed to make necessary arrangements for filing a brief. If he desires to continue the appeal, the judge shall also determine a date when his brief will be filed.
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 record of the hearing and a supplemental clerk's record containing the findings and conclusions. The transcribed record of the hearing, the court's findings and conclusions, and a videotape or compact disc, if any, containing a recording of the videoconference shall be filed with the clerk of this court by November 6, 2017.
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.