Abatement Order filed April 19, 2012.




                                         In The

                      Fourteenth Court of Appeals
                                     ____________

                                  NO. 14-11-00721-CR

                                     ____________

                      KELLEH MICHAEL CONTEH, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 174th District Court
                                Harris County, Texas
                           Trial Court Cause No. 1274972


                              ABATEMENT ORDER

       Appellant is represented by appointed counsel, Frances M. Northcutt.            On
December 16, 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 27, 2011, that no brief had been received. No response from
appellant was received. On January 13, 2012, the court directed the trial court to conduct
a hearing to determine why appellant’s brief had not been filed. A hearing was conducted
on February 8, 2012, and a record of that hearing was filed in this court on February 14,
2012. At the hearing, the trial court informed appellant that his attorney had stated that
she would be filing a brief within the next two weeks. More than two months have passed
and no brief has been filed. On March 27, 2012, this court notified counsel and the trial
court that no brief had been filed. No response was filed. 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
174th 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 new counsel should be appointed to represent
appellant to ensure effective representation of counsel; and if so, appoint new counsel; or
(b) determine 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 May 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 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.



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