COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

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 appointed counsel, Cheri Lynn Duncan, has not filed a brief on appellant’s 

behalf in the above-referenced appeal. Appellant’s brief was first 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 TEX. R. APP. 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 filed on December 28, 2016 and issue the following order.

Pursuant to Rule of Appellate Procedure 38.8, we must abate this appeal and remand the 

cases to the trial court for a hearing. See TEX. R. APP. P. 38.8(b)(2)–(3). We direct the trial court 

to conduct a hearing at which a representative of the Harris County District Attorney’s Office, 

appointed 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 this appeal; and, if so,

(2) whether appointed counsel Duncan has abandoned the appeal by failing to timely 

file briefs on appellant’s behalf; 

 

1 If 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 

interactive 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 the 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 date 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 appointed counsel Duncan has not abandoned 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. 

TEX. CODE CRIM. PROC. ANN. arts. 1.051(d), 26.04; TEX. R. APP. 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 

substitute 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 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 a supplemental clerk’s 

record that complies with this order, and the reporter’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