IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 10, 2005
______________________________
CALIP JOSEPH FARMER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 15,792-C; HONORABLE PATRICK PIRTLE, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
ORDER ON ABATEMENT AND REMANDAppellant Calip Joseph Farmer appeals his conviction for the felony offense of burglary of a habitation and punishment of twenty-five years confinement. The clerk's record and reporter's record have been filed and appellant timely filed his brief on February 7, 2005. The State has filed a motion seeking abatement and remand to permit the trial court to make orders it asserts are necessary to resolution of the appeal.
The record shows appellant filed a written pretrial motion to suppress oral and written statements he made to police. That motion alleged the statements were involuntary, specifically citing article 38.22 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2004). The trial court conducted a hearing on the motion at which both parties presented evidence. At the conclusion of that hearing the court determined appellant's written statement was given voluntarily. It found the oral statement was admissible under article 38.22, § 3(c), exempting certain oral statements from the requirement they be electronically recorded. The record does not contain a written order on the voluntariness of appellant's statements. Appellant has not objected to the absence of a written order.
Prior to filing its brief, the State has filed a motion seeking abatement of this appeal and remand to the trial court, reinstating jurisdiction in that court so it may render and file the written order containing the findings and conclusions required by article 38.22, § 6. It also seeks abatement to permit the trial court to certify appellant's right to appeal as required by Rule of Appellate Procedure 25.2(d). The State cites Green v. State, 906 S.W.2d 937 (Tex.Crim.App. 1995), for the proposition that abatement is necessary to allow the trial court to make the required findings and conclusions.
In Green the Court of Criminal Appeals held the order required by article 38.22, § 6, is mandatory regardless whether the defendant objects. Id. at 939. It also found an order made after the trial court lost jurisdiction over the case was void. Id. at 940. (1) Appellant has raised no objection to the relief sought by the State.
We grant the State's motion, abate this appeal and remand the case to the trial court. The trial court is directed to consider and make those orders it finds proper. Any order shall be filed in such time that a supplemental clerk's record may be filed in this court within thirty days of this order. On the filing of a supplemental clerk's record the appellate record will be complete. Appellant may file a substitute or supplemental brief within thirty days of that date. Tex. R. App. P. 38.6(a). The State's brief shall be due within sixty days from the filing of the supplemental clerk's record.
Per Curiam
Do not publish.
1. The continued vitality of Green may be uncertain. Urias v. State, No. PD-0335-03, 2005 Tex. Crim. App. Lexis 251 (Tex.Crim.App. February 16, 2005) (Keller, P.J., dissenting from denial of motion for rehearing).
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NO. 07-09-0262-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 7, 2010
______________________________
BRET ALAN AVERY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 19996-C; HONORABLE ANA ESTEVEZ, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ON ABATEMENT AND REMAND
Appellant, Bret Alan Avery, appeals from his conviction for possession of a controlled substance in a drug-free zone and sentence, pronounced on July 23, 2009, of 17 years incarceration in the Texas Department of Criminal Justice, Institutional Division. Appellant filed notice of appeal on August 3, 2009.
The clerks record was filed on September 24, 2009. The reporters record was due on October 26, 2009. The reporter neither filed the record nor requested an extension of time to file the record by that date. On November 13, 2009, the reporter requested an extension of time to file the record and indicated that the record was being edited at that time. The Court granted this extension request, making the reporters record due on December 7, 2009. On December 8, 2009, the reporter again filed a request for extension of time to file the record indicating that she was having a difficult time editing the record due to the sound I am proofing with as well as the way the attorneys presented their cases. The Court granted this extension request, making the reporters record due on December 28, 2009. On December 29, 2009, the reporter filed a third request for extension of time to file the record indicating only that I am completing this record. Please give me 30 more days. According to the reporters monthly report, this record is being proofread. There is no explanation provided as to why the reporter needs 30 days to proofread the record in this case. As such, we deny the reporters third request for extension of time to file the reporters record as not being supported by good cause.
Accordingly, we abate this appeal and remand the cause to the trial court for further proceedings. See Tex. R. App. P. 35.3(c). Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine whether the reporters caseload is such that an alternate or substitute reporter should or can be appointed to complete the record in this appeal in a timely manner. If so, the trial court is directed to take whatever steps are necessary to ensure that the reporters record in this appeal is filed as soon as practicable.
The trial court shall cause the hearing to be transcribed. In addition, the trial court shall (1) execute findings of fact and conclusions of law addressing the foregoing issues, (2) cause a supplemental clerks record to be developed containing its findings of fact and conclusions of law and any orders it may issue relating to this matter, and (3) cause a reporters record to be developed transcribing the evidence and arguments presented at the aforementioned hearing, if any. The trial court shall then file the supplemental clerks record and any reporters record transcribing the hearing with the Clerk of this Court on or before February 8, 2010. Should further time be needed by the trial court to perform these tasks, same must be requested before February 8, 2010.
It is so ordered.
Per Curiam
Do not publish.