Abatement Order filed March 13, 2012.




                                         In The

                      Fourteenth Court of Appeals
                                     ____________

                                 NO. 14-11-00849-CR
                                   ____________

                              IRAN LOVINGS, Appellant

                                           V.

                          THE STATE OF TEXAS, Appellee


                        On Appeal from the 185th District Court
                                Harris County, Texas
                            Trial Court Cause No. 791336



                        ABATEMENT                   ORDER

      The clerk's record reflects appellant was represented by appointed counsel, Kelly
Smith, when the trial court denied his motion for post-conviction DNA testing. Appellant
then filed a pro se notice of appeal. On December 19, 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). Appellant and the trial court were notified on December 27, 2011, that no brief
had been received. No response from appellant has been received.
      Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of the
185th 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) 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 April 12, 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 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.



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