Order filed November 7, 2011




                                              In The
                         Fourteenth Court of Appeals
                                      ____________
                                    NO. 14-10-01085-CR
                                      ____________
                                 PERRY GREEN, Appellant
                                            V.
                               THE STATE OF TEXAS, Appellee

                            On Appeal from the 177th District Court
                                     Harris County, Texas
                                Trial Court Cause No. 1211703

                                   ABATEMENT ORDER

       Appellant is represented by appointed counsel, Patti Sedita. On October 31, 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 May 2, 2011. Three extensions of time have been granted for
the filing of Appellant’s brief.
       The second extension of time stated that no further extensions would be granted except
for exceptional circumstances. The third extension 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 October
31, 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 did not file a brief on October 31, 2011. On November 2, 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 177th
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 16, 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 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 7, 2011.
                              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.
