Abatement Order filed June 22, 2021.
In The
Fourteenth Court of Appeals
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NO. 14-21-00126-CR
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EX PARTE DORIAN CHRISTOPHER LUGO
On Appeal from the 506th Judicial District Court
Waller County, Texas
Trial Court Cause No. 20-10-17466
ABATEMENT ORDER
Appellant is represented by appointed counsel, Robert Cardenas in this
accelerated pretrial bail habeas-corpus proceeding. On May 17, 2021, 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
May 18, 2021, 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 506th Judicial 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 July 12, 2021.
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
Panel Consists of Justices Wise, Jewell, and Spain.
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.