COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00396-CR
NO. 02-14-00397-CR
MICHAEL SCOTT HAYNES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CR13-0614, CR13-0615
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MEMORANDUM OPINION 1
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In a single issue, appellant challenges this court’s denial of his motion to
abate this appeal to allow him to file––and the trial court to consider and hold an
evidentiary hearing on––an out-of-time motion for new trial. We affirm.
1
See Tex. R. App. P. 47.4.
Procedural Background
While represented by appointed counsel, appellant pled guilty pursuant to
an open plea to the third degree felony offense of evading arrest with a vehicle.
After a hearing to consider punishment, the trial court sentenced appellant to two
years’ confinement in TDCJ–Institutional Division. Seventeen days later,
appellant filed a pro se notice of appeal, and the trial court appointed him counsel
the next day. Appellant’s newly-appointed appellate counsel filed a timely,
unsworn motion for new trial and motion in arrest of judgment. Several days
later, appellate counsel filed a “Motion for Reconsideration on New Trial and
Motion in Arrest of Judgment Hearing,” in which he stated, “The Defendant needs
to develop testimony surrounding the voluntariness of his guilty plea. The only
way to do that is from witness testimony during a hearing.” The record does not
show that the trial court expressly ruled on the motion for new trial and arrest of
judgment, but a week after appellant filed the motion for reconsideration, the trial
court signed an order indicating that appellant was not entitled to a hearing.
Five months after filing his notice of appeal, appellant filed in this court a
motion seeking to have the appeal abated for him to file an out-of-time motion for
new trial. Appellant indicated that he intended to attach to the amended motion
an affidavit that he apparently sent to his appellate counsel before the motion for
new trial period had expired but that counsel had not discovered in time to file an
amended motion for new trial. In his motion, appellant contended that if the trial
court believed the allegations in his affidavit, then he would be entitled to an
2
evidentiary hearing and could be entitled to a new trial because his plea was
involuntary due to ineffectiveness of his appointed trial counsel. His grounds
were that judicial economy “should be considered, to flesh out a possible
ineffective assistance claim rather than wait for a Writ of Habeas Corpus to be
filed.” This court denied the motion. Appellant now raises as his sole issue that
this court erred by denying the motion.
Analysis
The court of criminal appeals has held that a court of appeals erred by
abating an appeal for the trial court to hold an evidentiary hearing on a motion for
new trial when the State claimed on appeal that the motion, which was not
accompanied by an affidavit, was not timely presented. 2 Price v. State, 826
S.W.2d 947, 947–48 (Tex. Crim. App. 1990). The court of criminal appeals has
also held that rule 21.4 prohibits a defendant from filing an amended motion for
new trial later than thirty days after the imposition of sentence in open court, even
upon leave of court. Tex. R. App. P. 21.4; State v. Moore, 225 S.W.3d 556, 558
(Tex. Crim. App. 2007). Although in Jack v. State, the court of criminal appeals
dismissed the State’s appeal of a court of appeals’s abatement order for an out-
of-time motion for new trial hearing, it did so because the appeal was
interlocutory. 149 S.W.3d 119, 125 (Tex. Crim. App. 2004). Nevertheless, the
2
Appellant has not alleged that he was denied counsel at a critical stage of
the proceeding.
3
court of criminal appeals also noted in its opinion that the court of appeals had
not cited any rule allowing such an abatement procedure. Id. at 121.
On appeal, appellant cites rules 43.6 and 44.4 as authority for this court to
abate the appeal for the trial court to hold an evidentiary hearing on an amended
motion for new trial incorporating appellant’s affidavit. But rule 44.4 allows this
court to abate only if a trial court’s erroneous action, or failure or refusal to act,
prevents the proper presentation of a case to this court. Tex. R. App. P. 44.4(a).
It does not authorize this court to allow an out-of-time motion for new trial to
develop a record so that a postconviction habeas proceeding may be avoided.
See Fakeye v. State, 227 S.W.3d 714, 717–18 (Tex. Crim. App. 2007)
(explaining that court of appeals should not abate under rule 44.4 unless trial
court “has erroneously withheld information necessary to evaluate a defendant’s
claim on appeal . . . or has prevented the defendant from submitting information
necessary to evaluate his claim” and that not all trial court error should result in
abatement under rule 44.4 even if error may have affected decision to plead
guilty); cf. Oldham v. State, 977 S.W.2d 354, 359 (Tex. Crim. App. 1998) (op. on
reh’g) (holding that “using Rule 2(b) to ‘suspend’ or enlarge appellate time limits
which regulate the orderly and timely process of moving a case from trial to
finality of conviction is overstepping the contemplated uses of Rule 2(b)” and this
principle is not defeated by the goal of speeding up the process), cert. denied,
525 U.S. 1181 (1999).
4
Here, the record does not show trial court error because the trial court is
not required to hold an evidentiary hearing on either an unsworn motion for new
trial raising matters not determinable from the record or an amended motion for
new trial filed later than thirty days after the imposition of sentence in open court.
See Tex. R. App. P. 21.4; Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App.
2005); McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985). Appellant
has cited no other authority, nor have we found any, authorizing the relief he
requests.
Accordingly, we overrule appellant’s sole issue and affirm the trial court’s
judgment.
PER CURIAM
PANEL: LIVINGSTON, C.J; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 2, 2015
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