ERIC DEAN RODRIGUEZ APPELLANT v. THE STATE OF TEXAS APPELLEE (2012)

ORDER

Appellant, Eric Dean Rodriguez, was charged by indictment with the first degree felony offense of aggravated sexual assault of a child.¹  Trial commenced on July 13, 2010, but resulted in a sua sponte order of mistrial.   Appellant filed a Pre-trial Application for Writ of Habeas Corpus Seeking Relief from Double Jeopardy which the trial court denied on April 4, 2011.   On August 24, 2011, he filed a Motion to Reconsider the Court's Order Denying Defendant's Pre-trial Application for Writ of Habeas Corpus,² which the trial court again denied.   Appellant filed this appeal to challenge the denial of his motion to reconsider.

The reporter's record was filed on October 25, 2011, and the clerk's record was filed on October 27, 2011.   Pending before this Court is Appellant's Motion to Hold the Appeal in Abeyance Pending the Filing of the Supplemental Reporter's Record in which appellate counsel represents he has requested the court reporter to prepare, certify and file a supplemental record of “the crucial colloquy in the trial court surrounding the order of mistrial.”   For the reasons expressed herein, the motion is denied, the deadline for filing briefs is set herein and the parties are ordered to appear before this Court for oral submission of this appeal as directed herein.

Counsel for Appellant explains in his motion that the trial court ordered a mistrial based on the State's failure to timely disclose photographs to defense counsel.   He asserts the reporter's record does not contain “crucial colloquy” surrounding the trial court's order of mistrial.   However, this Court's review of the reporter's record on file demonstrates a colloquy between the trial court and counsel regarding the photographs and the trial court's sua sponte order of mistrial.³  Consequently, counsel's request to hold this appeal in abeyance is denied.

An appeal from the denial of an application for writ of habeas corpus is a matter which is to be heard at the “earliest practicable time.”   See Tex.R.App. P. 31.1.   Therefore, the necessity of filing a brief is a matter left to the discretion of the appellate court.   See id.   Although Appellant's brief would already be due under the timeframe set for a traditional appeal, no brief has been filed as of this date.

Due to the expedited nature of an appeal from the denial of a writ of habeas corpus, if Appellant desires to file a brief, his brief is due no later than Wednesday, February 22, 2012.   See id.   If the State desires to file a brief, its brief is due no later than February 29, 2012.   See id.

Additionally, regardless of whether or not briefs have been filed, notice is hereby given to all parties to appear before this Court on Monday, March 5, 2012, at 9:00 a.m., for oral submission of this appeal before a panel of this Court consisting of Chief Justice Quinn and Justices Campbell and Pirtle.   See id.

It is so ordered.

Do not publish.

FOOTNOTES

FN1. See Tex. Penal Code Ann. § 22.021 (West Supp.2011)..  FN1. See Tex. Penal Code Ann. § 22.021 (West Supp.2011).

FN2. Given the substance of Appellant's motion to reconsider, we view this as an appeal from the denial of a subsequent application for writ of habeas corpus..  FN2. Given the substance of Appellant's motion to reconsider, we view this as an appeal from the denial of a subsequent application for writ of habeas corpus.

FN3. See Volume 3, pages 190 through 203 of the reporter's record..  FN3. See Volume 3, pages 190 through 203 of the reporter's record.

Per Curiam