Opinion
01-22-00379-CR
02-14-2023
Javier Moreno v. The State of Texas
412th District Court of Brazoria County Trial court No: 73664-A
ORDER OF ABATEMENT
AMPARO GUERRA, J
The complete record was filed in this appeal on June 20, 2022. Appellant's brief, therefore, was originally due on July 20, 2022. See Tex. R. App. P. 38.6(a). Appellant's appointed counsel, Michael C. Diaz, has not filed a brief on appellant's behalf. On August 22, 2022, the Clerk of this Court notified appellant that the time for filing his brief had expired and, unless the Court received a motion for an extension of time, with appellant's brief, or a motion for an extension of time to file appellant's brief by September 1, 2022, the Court would be required to order the trial court to conduct a hearing pursuant to Texas Rule of Appellate Procedure 38.8. See Tex. R. App. P. 38.8(b)(2), (3); see also Tex. R. App. P 10.5(b). Appellant has not filed a brief or otherwise responded to the Clerk's notice.
Accordingly, we abate the appeal and remand for the trial court to, within twenty days of the date of this order, conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's appointed counsel, Michael C. Diaz, shall be present. Tex.R.App.P. 38.8(b)(2). Appellant shall also be present for the hearing in person or, if he is incarcerated, at the trial court's discretion, he 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 his request, appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the State's attorney.
The trial court is directed to:
(1) determine whether appellant wishes to prosecute the appeal;
(2) if appellant wishes to prosecute the appeal, determine whether good cause exists
to relieve Michael C. Diaz of his duties as appellant's counsel;
(3) if good cause exists, enter a written order relieving Michael C. Diaz 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 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 the trial court deems appropriate; and
(6) enter written findings of fact, conclusions of law, and recommendations as to these issues.See Tex. Code Crim. Proc. Ann. art. 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 thirty 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 thirty 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.