COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Javier Moreno v. The State of Texas
Appellate case number: 01-22-00379-CR
Trial court case number: 73664-A
Trial court: 412th District Court of Brazoria County
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.1
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
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 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.
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.
Judge’s signature: _____/s/ Amparo Guerra____
Acting individually Acting for the Court
Date: ___February 14, 2023_____
2