Order filed January 8, 2013




                                         In The

                      Fourteenth Court of Appeals
                                     ____________

                                 NO. 14-12-00576-CR
                                   ____________

                        KENNETH RAY THOMAS, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 174th District Court
                                Harris County, Texas
                           Trial Court Cause No. 1307268


                              ABATEMENT ORDER

       Appellant is represented by appointed counsel, Ted Doebbler. On November 30,
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
December 10, 2012, that no brief had been received. No response from appellant has
been received.

       Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of the
174th 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 February 7, 2013.

       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
                          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.
