Order filed November 30, 2011




                                          In The
                      Fourteenth Court of Appeals
                                       ____________

                                   NO. 14-11-00513-CR
                                     ____________

                          BRIAN WALKER SIMON, Appellant

                                             V.

                            THE STATE OF TEXAS, Appellee


                         On Appeal from the 338th District Court
                                  Harris County, Texas
                             Trial Court Cause No. 1263348



                              ABATEMENT ORDER

       Appellant is represented by counsel, J. Sidney Crowley. On November 28, 2011,
time to file appellant’s brief expired without a brief filed. See Tex. R. App. P. 38.6(a).
Appellant’s brief was originally due to be filed August 24, 2011. Three extensions of
time have been granted for the filing of Appellant’s brief.
       The third extension of time was granted with the notation that no further extension
of time would be granted and notified counsel that if the brief was not filed by November
28, 2011, the Court would order the case abated for a hearing 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.

       Counsel for Appellant has not filed a brief. On November 28, 2011, counsel for
Appellant instead filed a fourth motion for extension of time. Appellant’s fourth motion
for extension of time is denied.
       Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of the
338th 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 December 22. 2011.
       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

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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


Abatement Order filed November 30, 2011.




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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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