Continuing Abatement Order filed October 15, 2013




                                            In The

                        Fourteenth Court of Appeals
                                        ____________

                                    NO. 14-12-00938-CR
                                      ____________

                        JEREMY ONEIL FOUNTAIN, Appellant

                                               V.

                            THE STATE OF TEXAS, Appellee


                        On Appeal from the 230th District Court
                                 Harris County, Texas
                            Trial Court Cause No. 1339400


                     CONTINUING ABATEMENT ORDER

       Appellant is represented by appointed counsel, George Powell. On June 27, 2013,
this court issued an order striking appellant’s brief and requiring re-briefing. On July 30,
2013, time to file appellant’s amended brief expired without a brief and no motion for
extension of time was filed. See Tex. R. App. P. 38.6(a). On September 5, 2013, this
court abated the appeal for the trial court to determine whether appellant wished to pursue
his appeal and the reason for the failure to file a brief.
       On September 19, 2013, the trial court held a hearing at which appellant’s
appointed counsel stated that he had attempted to electronically file the brief, but had
been unsuccessful. Counsel represented that he attempted to file a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he averred that the appeal was
frivolous. On September 27, 2013, this court received appellant’s pro se response to
counsel’s Anders brief. However, counsel has failed to file any brief with this court.
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
230th District Court shall (1) immediately conduct another 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 November 12, 2013. In the event counsel files a brief before
November 12, 2013, there is no need for a hearing.

       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.
