Abatement Order filed November 8, 2012.




                                          In The

                       Fourteenth Court of Appeals
                                      ____________

                                  NO. 14-12-00271-CR
                                    ____________

                            ROGER MILLICAN, Appellant

                                             V.

                           THE STATE OF TEXAS, Appellee


               On Appeal from the County Criminal Court at Law No 9
                                Harris County, Texas
                           Trial Court Cause No. 1786137


                               ABATEMENT ORDER

       Appellant is represented retained counsel, Gregg Clements. The reporter’s record
was filed on May 25, 2012. On June 25, 2012, 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). Counsel and the trial court were notified on June 27, 2012, that no brief had been
received. Appellant did not respond. Accordingly, on August 2, 2012, pursuant to Tex. R.
App. P. 38.8(b), this court abated the appeal and ordered the trial to conduct a hearing to
determine why appellant’s brief had not been filed. On August 17, 2012, appellant filed a
motion for extension of time to file his brief. The court granted the extension request until
September 21, 2012, and withdrew the order for an abatement hearing. No brief was
filed. Counsel and the trial court were notified on September 25, 2012, that no brief had
been received. Appellant did not respond. APPELLANT’S BRIEF WAS DUE OVER
FIVE MONTHS AGO. Accordingly, the court issues the following order.

       Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of the
County Criminal Court at Law No. 9 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. 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 7, 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 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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