Continuing Abatement Order filed May 17, 2012.




                                          In The

                      Fourteenth Court of Appeals
                                      ____________

                                  NO. 14-11-00885-CR
                                    ____________

                     DANIEL GARCIA ESCALANTE, Appellant

                                            V.

                           THE STATE OF TEXAS, Appellee


                         On Appeal from the 176th District Court
                                  Harris County, Texas
                             Trial Court Cause No. 1303094


                    CONTINUING ABATEMENT ORDER

       Appellant is represented by appointed counsel, JULES L. LAIRD, JR.               On
December 2, 2011, 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). Counsel and the trial court
were notified on December 6, 2011, that no brief had been received. No response from
appellant was received. On March 6, 2012, this court ordered a hearing in the trial court.
       On April 4, 2012, a record of a hearing held March 29, 2012, was filed indicating
counsel would file a motion to withdraw the appeal. A motion to withdraw was filed
March 30, 3012, but was denied April 4, 2012, for failure to satisfy the requirement of Tex.
R. App. P. 42.2(a) that the motion be signed by appellant. As of the date of this order,
counsel has not filed a motion to withdraw the appeal that complies with Rule 42.2. No
brief has been filed. 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
176th 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
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 18, 2012.
       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


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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.



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