Continuing Abatement Order filed March 19, 2013.




                                      In The

                    Fourteenth Court of Appeals
                                   ____________

                              NO. 14-11-00838-CR
                              NO. 14-11-00839-CR
                              NO. 14-11-00840-CR
                              NO. 14-11-00841-CR
                                   ____________

                FREDRICHEE DOUGLAS SMITH, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 339th District Court
                             Harris County, Texas
          Trial Court Cause Nos. 1197969, 1197970, 1208812, & 1255072


                 CONTINUING ABATEMENT ORDER

      Appellant is currently represented by retained counsel, Abraham M. Fisch.
On May 4, 2012, time to file appellant’s brief expired without a brief or motion for
extension of time. See Tex. R. App. P. 38.6(a). Counsel and the trial court were
notified on May 8, 2012, that no brief had been received. No response from
appellant was received. Accordingly, on May 24, 2012, we abated the appeal and
directed the trial court to conduct a hearing to determine why appellant’s brief had
not been filed.

      The hearing was held on August 30, 2012, and a record of the hearing was
filed in this court on September 5, 2012. At the hearing, counsel for appellant
explained to the trial court that he had experienced the death of a close family
member in January and was unable to work for several months. He assured the
court that he had returned to work and would complete appellant’s brief in ninety
days. He also stated that appellant wished to continue his appeal despite the fact
that he had completed his sentences in these cases. Even though a ninety-day
extension is much longer than the court’s usual procedures, the court considered
counsel’s circumstances. Accordingly, we reinstated the appeal and set appellant’s
brief due November 28, 2012, ninety days after the hearing.

      Appellant’s brief was not filed by the extended due date, and no motion for
extension of time was filed. Counsel and the trial court were notified on December
4, 2012, that no brief had been received. No response from appellant was received.
The court has allowed additional time due to the holiday season in which to file
appellant’s brief and it has not been filed. Because appellant’s brief was, at the
time of the order, eight months past due, it appeared to the court that appellant had
abandoned the appeal or failed to make necessary arrangements for filing a brief.
Therefore, we were required to again abate the appeal for a hearing pursuant to
Tex. R. App. P. 38.8(b), and a second abatement order issued January 7, 2013.

      A hearing was held pursuant to this court’s order on February 1, 2013, and a
record of that hearing was filed February 6, 2013. The trial court made findings of
fact and conclusions of law, which were filed in a supplemental clerk’s record on
March 12, 2012. The trial court found that appellant wishes to continue his appeal,

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but counsel has not completed the brief, despite its being more than nine months
past due. At the hearing, counsel stated he had completed approximately one-half
of the brief, and the court ordered him to submit the partial brief for review. No
partial brief was submitted. The court found that appellant’s retained attorney has
abandoned the appeal. The further court found that appellant is indigent and
entitled to appointed counsel on appeal. The court recommended that current
counsel be removed and that the trial court appoint new appellate counsel for
appellant.

      We therefore continue our abatement of this appeal and direct the trial court
to remove current counsel and appoint new appellate counsel for appellant. The
judge shall order the trial clerk to forward a supplemental clerk’s record containing
the trial court’s order appointing new counsel to the clerk of this court on or before
April 8, 2013.

      The appeal remains 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 is 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.

                                   PER CURIAM




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