Opinion
01-23-00961-CR
05-16-2024
Jose Florentino Ortiz v. The State of Texas
268th District Court of Fort Bend County, 20-DCR-093162A
ABATEMENT ORDER
Peter Kelly, Judge
Appellant Jose Florentino Ortiz is represented by retained counsel Eduardo Franco and James Rivera. Appellant's brief was due on April 22, 2024. No brief or motion for extension has been filed. Accordingly, the Court issues 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 Fort Bend County District Attorney's Office, retained counsel Franco and Rivera, and appellant shall be present. The trial court shall have a court reporter record the hearing. The trial court is directed to make appropriate findings on these issues:
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.
(1) whether appellant wishes to prosecute these appeals; and, if so,
(2) whether retained counsel Franco and Rivera have abandoned the appeal by failing to timely file briefs on appellant's behalf;
(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 retained counsel Franco and Rivera have not abandoned the appeals, make appropriate findings and recommendations regarding the reason that counsel have 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 June 15, 2024. If the hearing is conducted by video teleconference, a certified video recording of the hearing shall be filed in this Court no later than June 15, 2024.
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.