Abatement Order filed May 20, 2014.




                                      In The

                    Fourteenth Court of Appeals
                                    ____________

                             NO. 14-14-00121-CR
                               ____________

                          EDDIE IBARRA, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1367286


                           ABATEMENT ORDER

      Appellant is represented by appointed counsel, Tony Aninao. On April 30,
2014, 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 May 1, 2014, that no brief had been received. No response
from appellant has been received.
       In addition, this court notified the trial court on March 26, 2014 that the
certifications of the defendant’s right of appeal in our record do not comport with the
recitation in the judgment. The certifications both state this “is not a plea-bargain case,
and the defendant has the right of appeal.” The judgment states that the “Terms of Plea
Bargain” are for a sentence of twenty years in prison. The record also reflects that
appellant’s plea was made subject to a pre-sentence investigation.

       Accordingly, the record requires correction, and we requested the trial court to:
       1.     remedy the defect by correcting the judgment to reflect that the guilty plea
              was not made pursuant to a plea bargain, or alternatively, filing a
              certification of the defendant=s right of appeal stating that the case is a plea
              bargain and appellant either has no right of appeal, was granted permission
              to appeal, or is appealing a pre-trial ruling;

       2.     instruct the trial court clerk to prepare and certify a supplemental clerk’s
              record containing the corrected judgment or certification; and

       3.     instruct the clerk to file the supplemental clerk’s record with this Court
              within 30 days of the date of this notice.

       Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge
of the 337th 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 the judgment or certification
should be corrected; (b) whether appellant desires to prosecute his appeal; (c)
whether appellant is indigent; (d) if not indigent, whether appellant has abandoned
the appeal or whether appellant has failed to make necessary arrangements for
filing a brief; (e) the reason for the failure to file a brief; (f) 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 and any corrected judgment or certification. Those
records shall be filed with the clerk of this court on or before June 20, 2014.

      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 recordCincluding any order and
findingsCmust 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.
