Abatement Order filed October 6, 2016
In The
Fourteenth Court of Appeals
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NO. 14-16-00431-CR
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MICHAEL FERERAS-ALCANTARA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1498308
ABATEMENT ORDER
Appellant is not represented by counsel. On September 19, 2016, 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). Appellant was notified on September 20, 2016,
that no brief had been received. No response from appellant has been received. The
trial court previously found appellant was not indigent. However, this court is
unaware if appellant is, at this time, entitled at this time to proceed without the
payment of costs. Accordingly, we enter the following order.
Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached), the judge
of the 183rd District Court shall immediately conduct a hearing at which appellant
and counsel for the State shall participate, either in person or by video
teleconference, to determine if appellant desires to prosecute his appeal, and, if so,
if appellant is indigent and, thus entitled to appointed counsel on appeal. The judge
may appoint appellate counsel for appellant if necessary. If appellant is not indigent,
the judge shall determine if appellant abandoned the appeal or if he has failed to
make necessary arrangements for filing a brief. If he desires to continue the appeal,
the judge shall also determine a date when his brief will be filed.
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 record of
the hearing and a supplemental clerk’s record containing the findings and
conclusions. The transcribed record of the hearing, the court’s findings and
conclusions, and a videotape or compact disc, if any, containing a recording of the
videoconference shall be filed with the clerk of this court by November 7, 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
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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 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.
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