The opinion
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ABATEMENT ORDER
Appellate case name: Daniel Sherman Brown v. The State of Texas
Appellate case numbers: 01-15-00291-CR; 01-15-292-CR; 01-15-00293-CR
Trial court case numbers: 1414895, 1422157; 1422158
Trial court: 183rd District Court of Harris County
Appellant’s brief was originally due on September 30, 2015. Two extensions were
granted until December 4, 2015. No brief was filed. On December 23, 2015, notice issued that
the brief was late and gave appointed counsel ten days to respond. No response was received.
When an appellant in a criminal case fails to file a brief, Rule 38.8(b)(4) requires the
appellate court to issue an order, directing the trial court to hold a hearing and make certain
findings. TEX. R. APP. P. 38.3(b)(2)-(3). If the trial court finds that appellant no longer desires
to prosecute the appeal, or that appellant is not indigent, but has not made the necessary
arrangements for filing a brief, the appellant court may consider the appeal without briefs. Id. at
38.8(b)(4).
Accordingly, we abate this appeal and remand the case to the trial court for a hearing at
which appellant and appointed counsel, Kelly Ann Smith, shall be present in person. 1 The court
coordinator of the trial court shall set a date for said hearing and notify the parties, including
appellant. We direct the trial court to make appropriate written findings of fact and conclusions
of law and to execute any necessary orders on these issues:
1) Whether appellant still wishes to pursue this appeal;
2) If so, whether appointed counsel, Kelly Ann Smith, has abandoned the appeal and
other counsel should be appointed; and
3) To set a date certain (in no event to be more than 30 days from the date of the
1 If appellant is now incarcerated, he may appear by closed video teleconference. Any such teleconference
must use a closed-circuit video teleconferencing system that provides for a simultaneous compressed full
motion video and interactive communication of image and sound between the trial court, appellant, and any
attorneys representing the State or appellant. On request, appellant and his counsel shall be able to
communicate privately without being recorded or heard by the trial court or the attorney representing the
State.
abatement hearing) for appellant to file a brief.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (f); TEX. R. APP. P. 38.8(b).
The trial court’s findings and recommendations (separate and apart from any docket sheet
notation) and any orders issued pursuant to this hearing shall be included in a supplemental
clerk’s record and filed in this Court no later than 30 days from the date of this order. The
trial court shall have a court reporter, or court recorder, record the hearing and file the reporter’s
record with the Court no later than 30 days from the date of this order. Additionally, if the
hearing is conducted by video teleconference, a certified electronic copy of the hearing shall be
filed in this Court no later than 30 days from 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 supplemental
clerk’s record and reporter’s record of the hearing are filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Rebeca Huddle
Acting individually Acting for the Court
Date: January 21, 2016