                                 COURT OF APPEALS FOR THE
                            FIRST DISTRICT OF TEXAS AT HOUSTON

                                      ORDER OF ABATEMENT

Appellate case name:      Darryl Dewayne Harper v. The State of Texas

Appellate case number:    01-12-00202-CR

Trial court case number: 1297713

Trial court:              248th District Court of Harris County

         The complete record was filed in the above-referenced appeal on June 13, 2012, making
appellant’s brief due on July 13, 2012. See TEX. R. APP. P. 38.6(a). On July 19, 2012, appellant’s
appointed counsel, Terrence Gaiser, filed a motion for extension of time to file the brief,
requesting that the deadline be extended to August 13, 2012. The motion was granted. On
August 29, 2012, the Clerk of this Court sent appellant a notice informing him that his brief was
late. Appellant responded by filing a second motion for an extension of time, requesting that the
deadline be extended to September 28, 2012. The motion was granted. On October 19, 2012,
the Clerk of this Court sent appellant a second notice informing him that his brief was late,
requiring a satisfactory response within 10 days and notifying appellant that, if he failed to
provide a satisfactory response, the Court would be required to order the trial court to conduct a
hearing pursuant to rule 38.8. TEX. R. APP. P. 38.8(b)(2), (3). On October 26, 2012, appellant
responded by filing a third motion for extension, requesting that the deadline be extended to
November 30, 2012. The date appellant filed his third motion for extension was 105 days after
the original deadline for appellant’s brief. If we grant appellant’s motion, appellant will receive
a total of 170 days in which to file his brief. Absent extraordinary circumstances, this Court does
not ordinarily grant extensions of time beyond 90 days to file a brief. Appellant has not shown
extraordinary circumstances, and appellant has not provided a satisfactory response to the second
notice informing him that his brief was late.
       We therefore abate the appeal and remand for the trial court to immediately conduct a
hearing at which a representative of the Harris County District Attorney’s Office and appellant’s
counsel, Terrence Gaiser, shall be present. TEX. R. APP. 38.8(b)(2). Appellant shall also be
present for the hearing in person or, if appellant is incarcerated, at the trial court’s discretion,
appellant may participate in the hearing by closed-circuit video teleconferencing. 1


1      Any such teleconference must use a closed-circuit video teleconferencing system that
       provides for a simultaneous compressed full motion video and interactive communication
       The trial court is directed to:
       (1) determine whether appellant wishes to prosecute the appeal;
       (2) if appellant does wish to prosecute the appeal, determine whether good cause exists
           to relieve Terrence Gaiser of his duties as appellant’s counsel;
       (3) if good cause exists, enter a written order relieving Terrence Gaiser of his duties as
           appellant’s counsel, including in the order the basis for and finding of good cause,
           and appoint substitute appellate counsel at no expense to appellant;
       (4) if good cause does not exist, set a date certain when appellant’s brief is due,
           regardless of whether this Court has yet reinstated the appeal and no later than 30
           days from the date of the hearing;
       (5) make any other findings and recommendations the trial court deems appropriate; and
       (6) enter written findings of fact, conclusions of law, and recommendations as to these
           issues.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), 26.04(j)(2) (West Supp. 2012); TEX.
R. APP. P. 38.8(b).
        The trial court shall have a court reporter record the hearing and file the reporter’s record
with this Court within 25 days of the date of this order. The trial court clerk is directed to file a
supplemental clerk’s record containing the trial court’s findings and recommendations with this
Court within 25 days of the date of this order. If the hearing is conducted by video
teleconference, a certified video recording of the hearing shall also be filed in this Court within
25 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 supplemental
clerk’s record and the reporter’s record of the hearing are filed in this Court. The court
coordinator of the trial court shall set a hearing date and notify the parties and the Clerk of this
Court of such date.
       It is so ORDERED.

Judge’s signature: /s/ Terry Jennings
                    Acting individually       Acting for the Court


Date: November 7, 2012




       of image and sound between the trial court, appellant, and any attorneys representing the
       State or appellant. On request of appellant, appellant and his counsel shall be able to
       communicate privately without being recorded or heard by the trial court or the attorney
       representing the State.
