Order filed July 24, 2014.
In The
Fourteenth Court of Appeals
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NO. 14-14-00316-CR
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WILLIAM ERRON DUNLAP, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1366222
ABATEMENT ORDER
Appellant is represented by retained counsel, Tucker Graves. No reporter’s
record has been filed in this case. B.J. Orsack, the official court reporter, informed
this court that appellant had not made payment arrangements for the reporter’s
record. On April 29, 2014, the clerk of 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. Accordingly, on
May 22, 2014, we ordered appellant’s retained counsel, Tucker Graves, to file a
brief in this appeal without the benefit of the reporter’s record on or before June
23, 2014. No brief was filed. On June 24, 2014, this court notified counsel and the
trial court that appellant’s brief was past due. No response 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 248th District Court shall (1) immediately conduct a hearing, at which
appellant, appellant’s counsel, if any, and the 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 and consideration of the imposition of sanctions for 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 within thirty days of the date of this
order.
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.