Jose Werner Munguia v. State ( 2020 )

Abatement Order filed January 14, 2020 In The Fourteenth Court of Appeals ____________ NO. 14-19-00813-CR ____________ JOSE WERNER MUNGUIA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 209th District Court Harris County, Texas Trial Court Cause No. 1505214 ABATEMENT ORDER Appellant is not represented by counsel. On December 27, 2019, time to file appellant’s brief expired, and no brief or motion for extension of time was filed. See Tex. R. App. P. 38.6(a). Appellant was notified on December 30, 2019, that no brief had been received. No brief or response from appellant has been filed. Therefore, pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of the 209th 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 February 13, 2020. 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 Zimmerer, Spain, and Hassan. 2 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. 3