Abatement Order filed February 6, 2014.




                                        In The

                     Fourteenth Court of Appeals
                                    ____________

                               NO. 14-13-00256-CR
                                 ____________

                         MILTON WHITING, Appellant

                                          V.

                        THE STATE OF TEXAS, Appellee


                    On Appeal from the 174th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1365102


                            ABATEMENT ORDER

      Appellant is represented by appointed counsel, Andrew G. McGee.
Appellant’s brief was originally due July 1, 2013. Counsel has been granted five
extensions of time to file the brief until November 4, 2013. On October 10, 2013,
this court issued an order granting counsel a final extension of time and notified
counsel that failure to file a brief would result in an order for a hearing in the trial
court. Counsel did not file the brief as ordered, but instead he requested and was
granted a further extension of time until November 22, 2013, to file appellant’s
brief. The brief was not filed. Counsel and the trial court were notified on
December 2, 2013, that no brief had been received. Appellant’s counsel filed no
response. Accordingly, on December 19, 2013, this court abated the appeal and
directed the trial court to conduct a hearing to determine why appellant’s brief had
not been filed.

      On January 15, 2014, a record of the hearing was filed. At the hearing,
counsel advised the trial court that the brief was substantially completed and it
would be filed on January 21, 2014.

      To date, appellant’s brief has not been filed. Counsel and the trial court were
notified on January 23, 2014, that no brief had been received. Appellant’s counsel
filed no response. Accordingly, we issue the following order:

      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
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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 March 7, 2014.

      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



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arrangements for filing a brief, the appellate court may consider the appeal without
briefs, as justice may require.




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