TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-05-00817-CR
NO. 03-05-00818-CR
The State of Texas, Appellant
v.
Thomas Dale Delay, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NOS. D-1-DC-05-900725 & D-1-DC-05-904161,
HONORABLE WAYNE PATRICK PRIEST, JUDGE PRESIDING
PER CURIAM
Appellee Thomas Dale Delay has filed an emergency motion for partial abatement of the appeal, remand to the district court, and direction to sever those counts of the indictment not appealed. We overrule the motion. The State has the right to appeal an order that "dismisses an indictment. . . or any portion of an indictment." Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 2005). Article 44.01(e) of the code of criminal procedure provides that the State is "entitled to a stay of the proceedings" pending the disposition of the State's appeal. Id. art. 44.01(e). Accordingly, the district court has properly stayed its consideration of the case pending our resolution of the State's appeal. See id.
In light of the district court's decision to defer further action pending the resolution of the State's appeal, the State has filed a motion to dismiss its motion to stay further proceedings in the trial court. The State's motion to dismiss is granted, and the motion to stay further proceedings is dismissed.
We also overrule appellee's motion for expedited briefing and submission. The record was filed with this court on December 19, 2005. Thus, the State's brief is due on or before January 18, 2006. No extensions will be granted.
Before Justices B. A. Smith, Patterson and Puryear
Filed: December 22, 2005
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