Abatement Order filed June 14, 2016




                                       In The

                     Fourteenth Court of Appeals
                                    ____________

                               NO. 14-15-00806-CR
                                 ____________

                        JARVIS L. BARBER, Appellant

                                          V.

                       THE STATE OF TEXAS, Appellee


             On Appeal from County Criminal Court at Law No. 7
                           Harris County, Texas
                       Trial Court Cause No. 2008621

                              ABATEMENT ORDER

      Appellant is represented by retained counsel, Frederick Wilson. No
reporter’s record has been filed in this case. On January 20, 2016, Kara Salazar, the
court reporter, notified this court that appellant had not made arrangements to pay
for the reporter’s record. On February 9, 2016, this court abated the appeal and
ordered the trial court to determine whether appellant desired to prosecute his appeal
and, if so, whether he is indigent and entitled to a free record and appointed counsel.
The trial court held a hearing on February 24, 2016, in which it confirmed appellant
is not indigent and has retained Wilson as appellate counsel. At that hearing,
appellant, through Wilson, agreed to contact the court reporter and make
arrangements to pay for the reporter’s record.

      On February 25, 2016, Salazar again notified this court that appellant had not
made arrangements to pay for the reporter’s record. That day, this court notified
appellant that we would consider and decide those issues that do not require a
reporter’s record unless appellant, within 15 days of notice, provided this court with
proof of payment for the record. See Tex. R. App. P. 37.3(c). Appellant filed no
reply. On April 12, 2016, the court reporter informed this court that appellant has
still not made arrangements to pay for the reporter’s record. On April 19, 2016, we
ordered Wilson to file a brief in this appeal by May 19, 2016. No brief or motion for
extension of time to file the brief was filed. Counsel was notified on May 20, 2016,
that no brief had been received. The court has not received a response to that notice.

      Accordingly, the court ORDERS as follows:

      Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of
County Criminal Court at Law No. 7 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 July 14, 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
                         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.
