Motion Denied and Abatement Order filed July 28, 2016.




                                        In The

                      Fourteenth Court of Appeals
                                     ____________

                                NO. 14-15-00935-CR
                                NO. 14-15-00936-CR
                                  ____________

                    JOSE HERIBERTO LOPEZ, Appellant

                                           V.

                        THE STATE OF TEXAS, Appellee


                    On Appeal from the 180th District Court
                              Harris County, Texas
                  Trial Court Cause Nos. 1348777 and 1348778


                             ABATEMENT ORDER

      Appellant is represented by retained counsel, Patrick F. McCann.
Appellant’s brief was originally due March 14, 2016. After granting more than 90
days of extensions to file appellant’s brief, we ordered counsel to file a brief by July
13, 2016. When we issued that order, we cautioned counsel that if he did not timely
file the brief, we would abate the appeal and direct 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. No brief was
filed.

         On July 12, 2016, counsel filed a further request for extension on the ground
that the second volume of the clerk’s record was sealed and he needed it to be
unsealed. Counsel requested an extension for 90 days after the clerk’s record is
unsealed.

         We DENY the request for extension and ORDER as follows:

         Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of
the 180th 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
by August 29, 2016.
      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 Boyce, Christopher, and Jamison.
                         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.
