Abatement Order filed December 4, 2015
In The
Fourteenth Court of Appeals
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NO. 14-15-00664-CR
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KENNARD RAYSHAWN JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Cause No. 1999937
ABATEMENT ORDER
Appellant is represented by retained counsel, James M. Sims. On
November 19, 2015, 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). Counsel and
the trial court were notified on November 20, 2015, that no brief had been
received. No response from appellant has been received.
Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge
of the County Criminal Court at Law No 8 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 January 4, 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 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.