Abatement Order filed September 10, 2013.




                                      In The

                    Fourteenth Court of Appeals
                                  ____________

                              NO. 14-13-00148-CR
                                ____________

                     EX PARTE DIANA E. RODRIGUEZ


                    On Appeal from the 400th District Court
                            Fort Bend County, Texas
                     Trial Court Cause No. 05-DCR-043094


                           ABATEMENT ORDER
      Appellant filed a notice of appeal from the denial of her application for writ
of habeas corpus, which was filed pursuant to article 11.072 of the Texas Code of
Criminal Procedure. Appellant is represented by retained counsel, Eduardo Jesus
Franco. No reporter’s record has been filed in this case. Karen Romeo Rothman,
the official court reporter for the 400th District Court, informed this court that
appellant had not made payment arrangements for preparation of the reporter’s
record.
      On April 22, 2013, the clerk of this court notified appellant that we would
consider and decide those issues that do not require a reporter’s record unless
appellant, within 15 days of notice, provided this court with proof of payment for
the record. See Tex. R. App. P. 37.3(c). Appellant filed no reply. Accordingly, on
May 30, 2013, we ordered counsel to file a brief without the benefit of a reporter’s
record.
      No brief was filed. On July 15, 2013, this court notified appellant that the
brief was past due. No response was filed. We may not dismiss the appeal or
decide the appeal without a brief unless the trial court makes findings that
appellant has abandoned the appeal by failing to make arrangements to file a brief.
See Tex. R. App. P. 38.3(b)(1). Accordingly, we issue the following order:
        Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge
of the 400th 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) 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. 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 October 1, 2013,
2013.

        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.
