Opinion
NO. 14-17-00948-CR
05-08-2018
KENNETH MARTIN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court Harris County, Texas
Trial Court Cause No. 1512850
ABATEMENT ORDER
Appellant is represented by appointed counsel, Amy Martin. On April 30, 2018, 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).
On April 26, 2018, appellant's counsel filed a motion to dismiss this appeal contending it is unlikely that appellant wishes to pursue his appeal. The motion does not comply with Texas Rule of Appellate Procedure 42.2(a) because it is not signed by appellant. Further, no finding has been made by the trial court that appellant no longer desires to prosecute his appeal.
Considering appellant's failure to timely file a brief and the motion to dismiss, we issue the following order.
We order the judge of the 339th District Court to (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 June 7, 2018.
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 Panel consists of Justices Jamison, Wise, and Jewell.