Abatement Order filed October 16, 2014
In The
Fourteenth Court of Appeals
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NO. 14-13-00512-CR
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RONALD CROW, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Cause No. 16373
ABATEMENT ORDER
Appellant is represented by retained counsel, Sylvia Cedillo. No reporter’s
record or brief has been filed. The trial court has previously determined that
appellant is not indigent for purposes of a free record or appointment of counsel on
appeal. Rule 38.8 provides that we will not dismiss or consider the appeal without
a reporter’s record or brief unless it is shown the appellant no longer desires to
prosecute his appeal or that he is not indigent and has failed to make necessary
arrangements for filing a brief. Tex. R. App. P. 38.8.
A hearing has already been held as required under Rule 38.8. At that
hearing, the trial court found that appellant is not indigent. On May 30, 2014, this
court ordered appellant to make sufficient payment for the reporter’s record and to
file the record on or before July 3, 2014. On July 7, 2014, Wendy L. Kirby, the
official court reporter for the 21st District Court notified this court that the
payment she received is insufficient as a deposit toward the reporter’s record.
Because the trial court has already held one hearing to make the findings required
under Rule 38.8, and we can find nothing in the rules or case law that requires this
court to send this matter back to the trial court a second time, we decline to do so.
On July 10, 2014, this court ordered appellant to file a reporter’s record in
this appeal on or before August 14, 2014. On August 18, 2014, Wendy L. Kirby,
the official court reporter for the 21st District Court notified this court that the
payment she received is still insufficient as a deposit toward the reporter’s record.
On August 21, 2014, this court ordered appellant to file a brief on or before
September 22, 2014. No brief was filed. 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 21st 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 November 18, 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
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.