Motion Denied and Abatement Order filed March 15, 2016




                                                   In The

                           Fourteenth Court of Appeals
                                              ____________

                                        NO. 14-15-00645-CR
                                        NO. 14-15-00646-CR
                                          ____________

                                BENNY MARTINEZ, Appellant

                                                      V.

                              THE STATE OF TEXAS, Appellee


                        On Appeal from the 232nd District Court
                                  Harris County, Texas
                       Trial Court Cause Nos. 1404694 and 1405932

                                      ABATEMENT ORDER

        Appellant is represented by appointed counsel, Patti Sedita. Appellant’s brief
was originally due September 25, 2015. We have granted a total of 90 days to file
appellant’s brief until December 28, 2015.1 When we granted the last extension, we
noted that no further extensions would be granted absent exceptional circumstances.

1
 The motion for extension of time filed December 1, 2015, was ruled upon December 10, 2015, granting the request
until December 28, 2015.
No brief was filed. On January 25, 2016, counsel filed a further request for extension
of time to file appellant’s brief. Counsel’s request asked for a further extension until
March 1, 2016, on the grounds a supplemental record had been requested. We
granted the request for extension and ordered Patti Sedita to file a brief with the clerk
of this court on or before March 1, 2016. We informed Patti Sedita that if the brief
was not timely filed as ordered, the court would issue an order abating the appeal
and directing the trial court to conduct a hearing to determine the reason for the
failure to file the brief and the consideration of sanctions, appointment of new
counsel, or other appropriate relief.

      On February 26, 2016, Patti Sedita filed another motion for extension of time
to file her brief, until April 8, 2016. The motion is DENIED. Further, we enter the
following order.

      Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of
the 232nd 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
within thirty days of the date of this order.

      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



Panel consists of Justices Jamison, Donovan and Brown.
                       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.
