C OURT OF A PPEALS FOR THE
F IRST D ISTRICT OF T EXAS AT H OUSTON

O RDER

Appellate case name: Reynaldo Ortega v. The State of Texas

Appellate case number: 01

- 16

- 00342

- CR

Trial court case number: 1461108

Trial court: 263rd District Court of Harris County

Appellant’s appoint ed counsel, Cheri Lynn Duncan , has not filed a brief on appellant’s

behalf in the above

- referenced appeal. Appellant’s brief was fi rst due on September 21, 2016

. We granted three requests for extension until December 21, 2016. When we granted the last extension, we noted that we would grant no further extension. On December 28, 2016, the Clerk of the Court notified appellant that the brief had not yet been filed and required a response within 10 days. See T EX

. R. A PP

. P. 38.8(b)(2). On the same date our notice issued, appointed counsel filed a fourth request for extension, seeking an extension until December 30, 2016. We held this motion for the filing of the brief, but the brief has not been filed. Accordingly we deny the

motion fi led on December 28, 2016 and issue the following order.

Pursuant to Rule of Appellate Procedure 38.8, we must abate th is appeal and remand the cases to the trial court for a hearing. See T EX

. R. A PP

. P. 38.8(b)(2)

– (3). We direct the trial court

to conduc t a hearing at which a representative of the Harris County District Attorney’s Office, appoint ed counsel Duncan , and appellant shall be present. 1 The trial court shall have a court reporter record the hearing. The trial court is directed to make appropriate findings on these

issues:

(1) whether appellant wishes to prosecute th is appeal; and, if so,

(2) whether appoint ed counsel Duncan has abandoned the appeal by failing to timely file briefs on appellant’s behalf;

1 I f appellant is incarcerated, at the trial court’s discretion, appellant may participate in the hearing by closed

- circuit video teleconferencing . Any such teleconference must use a closed

- circuit video teleconferencing system that provides for a simultaneous compressed full motion video and

interac tive communication of image and sound between the trial court, appellant, and any attorneys representing the State or appellant. On request of appellant, appellant and his counsel shall be able to communicate privately without being recorded or heard by t he trial court or the attorney representing the State.(3) and, if so, whether appellant is presently

(a) indigent, in which case the trial court should appoint new appellate counsel at no expense to appellant and establish a da te by which counsel will file a brief, no later than 30 days from the appointment; or

(b) not indigent, in which case the trial court should establish a date by which appellant shall retain new counsel;

(4) or, if appointe d counsel Duncan has not abandon ed the appeal, make appropriate findings and recommendations regarding the reason that counsel has failed to file a brief and establish a date by which counsel will file appellant’s brief, no later than 30 days from the date of the hearing

.

T EX

. C ODE C RI M

. P ROC

. A NN

. arts. 1.051(d), 26.04; T EX

. R. A PP

. P . 38.8(b)(2), (3), (4).

The trial court shall cause a supplemental clerk’s record containing its findings and
recommendations, including the name, address, telephone number, and State Bar number of any

sub stitute counsel, and the reporter’s record of the hearing to be filed in this Court no later than February 13, 2017

. If the hearing is conducted by video teleconference, a certified video recording of the hearing shall be filed in this Court no later than February 13, 2017

.

The appeal i s 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 a supplemental clerk’s record that complies with this order, and the reporte r’s record of the hearing, have been filed in

this Court. The trial court coordinator shall set a hearing date and notify the parties and the

Clerk of this Court of such date

.

It is so ORDERED.

Judge’s signature: /s/ Harvey Brown

 Acting individually  Acting for the Court

Date: January 12 , 2017