COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name: David Nino v. The State of Texas

Appellate case number: 01-19-00510-CR

Trial court case number: 1548026

Trial court: 209th District Court of Harris County

Appellant, David Nino, has filed his fifth motion to extend time despite the Clerk of 

this Court previously admonishing appellant that no further extensions would be granted. 

Appellant’s brief was originally due on October 3, 2019. Appellant requests an extension 

through January 27, 2020, but has not filed his brief as of the date of this order. Moreover, 

appellant’s motion does not comply with the Texas Rule of Appellate Procedure 10.5 

because it does not state the deadline for filing his brief or the number of previous 

extensions granted. Tex. R. App. P. 10.5(b)(1)(A), (D). Accordingly, we deny appellee’s 

motion.

We issue the following order of abatement. The Clerk of this Court’s December 10, 

2019 order notified appellant that this case may be abated for failure to file a brief, and

informed appellant that no further extensions would be granted. Appellant did not 

satisfactorily respond. See TEX. R. APP. P. 38.8(b)(2). We therefore abate the appeal and 

remand for the trial court to immediately conduct a hearing at which a representative of the 

Harris County District Attorney’s Office and appellant’s counsel, Seth Herschel Kretzer, 

shall be present. TEX. R. APP. P. 38.8(b)(2). Appellant shall also be present for the hearing 

in person or, if appellant is incarcerated, at the trial court’s discretion, appellant may 

participate in the hearing by closed-circuit video teleconferencing.1

1 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.
2

The trial court is directed to:

(1) determine whether appellant wishes to prosecute the appeal; 

(2) if appellant does wish to prosecute the appeal, determine whether good cause 

exists to relieve Seth Herschel Kretzer of his duties as appellant’s counsel; 

(3) if good cause exists, enter a written order relieving Seth Herschel Kretzer of his 

duties as appellant’s counsel, including in the order the basis for and finding of 

good cause, and appoint substitute appellate counsel at no expense to appellant;

(4) if good cause does not exist, set a date certain when appellant’s brief is due, 

regardless of whether this Court has yet reinstated the appeal and no later than 

30 days from the date of the hearing;

(5) make any other findings and recommendations that the trial court deems 

appropriate; and

(6) enter written findings of fact, conclusions of law, and recommendations as to 

these issues, separate and apart from any docket sheet notations.

See TEX. CODE CRIM. PROC. arts. 1.051(a), (c), (d)(1), 26.04(j)(2); TEX. R. APP. P. 38.8(b).

The trial court shall have a court reporter record the hearing and file the reporter’s 

record with this Court within 40 days of the date of this order. The trial court clerk is 

directed to file a supplemental clerk’s record containing the trial court’s findings and 

recommendations with this Court within 40 days of the date of this order. If the hearing is 

conducted by video teleconference, a certified video recording of the hearing shall also be 

filed in this Court within 40 days of 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 the reporter’s record of the hearing are filed in this Court. The court 

coordinator of the trial court 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/ Evelyn V. Keyes

 Acting individually Acting for the Court

Date: February 4, 2020