WALKER v. STATE (2019)

ORDER

On January 14, 2019, appellant filed a motion to abate this appeal to permit a hearing on appellant’s motion for new trial alleging ineffective assistance of counsel. The motion for new trial was supported by affidavits and was overruled by operation of law.

As authority for abatement appellant cites Washington v. State, 394 S.W.3d 39, 44–45 (Tex. App.—Houston [1st Dist.] 2012, published order) and Thomas v. State, 286 S.W.3d 109, 117 (Tex. App.—Houston [14th Dist.] 2009, published order). In Washington, the First Court of Appeals, citing Thomas, abated the appeal and remanded for a hearing on appellant’s motion for new trial alleging ineffective assistance. 394 S.W.3d at 44. The First Court did so after full briefing from appellant in which appellant argued both the error and prejudice prongs of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See id. In Thomas, this court abated for a hearing on a motion for new trial, after full briefing by appellant and the State on the issue of ineffective assistance. 286 S.W.3d at 115–16. Appellant cites no authority supporting the proposition that an appellate court should abate an appeal for a hearing on a motion for new trial before the parties file their appellate briefs.

We deny appellant’s motion to abate for a hearing on his motion for new trial without prejudice to appellant’s ability to re-urge the motion after briefing is complete.

DISSENT TO DENIAL OF MOTION TO ABATE THE APPEAL AND REMAND THE CASE FOR A HEARING ON APPELLANT'S MOTION FOR NEW TRIAL

Because appellant’s motion for new trial raises issues which are not determinable from the record, I would grant appellant’s motion to abate the appeal and remand the case to the trial court for a hearing on appellant’s motion for new trial so that appellant has meaningful appellate review. See Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009); Hemphill v. State, No. 14-13-00395-CR, 2015 WL 1456338, at *5–*10 (Tex. App.—Houston [14th Dist.] Mar. 26, 2015, no pet.) (mem. op., not designated for publication).

Accordingly, I dissent from the denial of appellant’s motion to abate the appeal and remand the case to the trial court for a hearing on appellant’s motion for new trial.

PER CURIAM

(J. Spain, dissenting).