IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 25, 2007
______________________________ERSKINE L.T. ALLEN, JR.,
Appellant
v.THE STATE OF TEXAS,
Appellee
_________________________________FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 22,580; HON. CECIL PURYEAR, PRESIDING _______________________________
Abatement _______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Pending before the court is the motion of Erskine L.T. Allen, Jr. requesting that the cause be abated to determine whether a final judgment has been entered. The record contains no document entitled order or judgment disposing of Allen's petition for DNA testing. Instead, it appears that he appealed due to a notation of the trial judge on correspondence from appellant. The notation reads: "file no action by Court. Def previously filed DNA request. There is no merit to the request. There is no DNA to be tested. 4/19/06 /s/ C. Puryear." (Emphasis added). Like counsel, we too are unable to discern if the notation evinces an intent to render a final, appealable order denying Allen relief or whether it is simply an indication that the trial court did and will not act on the DNA request.
Consequently, we abate the appeal and remand the cause to the 137th District Court of Lubbock County (trial court) for further proceedings. See Dion's of Tex. v. Shamrock Econ. Dev. Corp., No. 07-04-0050-CV, 2004 Tex. App. Lexis 7408 (Tex. App.- Amarillo, February 25, 2005, no pet.) (holding that a court of appeals may abate an appeal to permit clarification by the trial court of whether its order is final) (not designated for publication). Upon remand, the trial court shall determine whether a final order has been entered in the cause and, if so, identify that order finally disposing of Allen's request for DNA testing. The trial court shall also cause to be developed a supplemental clerk's record containing findings of fact and conclusions of law addressing the issues mentioned and, if a final order has been entered, a copy of that order. Additionally, the trial court shall cause the supplemental clerk's record to be filed with the clerk of this court on or before February 23, 2007. Should additional time be needed to perform these tasks, the trial court may request same on or before February 23, 2007.
It is so ordered.
Per Curiam
Do not publish.
s waived. See Proctor, 967 S.W.2d at 844. However, once the defendant raises the defense, the burden then shifts to the State to prove that the prosecution is not barred by limitations. See id.
In the present case, appellant properly raised the defense of limitations. Appellant presented sufficient evidence of the application of limitations in this case by referencing the information which, on its face, evidenced that prosecution was limitations-barred. The State's response correctly contended that limitations are tolled while a prior information is pending for the same offense. See Tex. Code Crim. Proc. Ann. art. 12.05(b) (Vernon 2005); McAlister v. State, 119 S.W.3d 460, 462 (Tex.App.-Fort Worth 2003, no pet.). However, the State failed to submit any evidence of the pendency of a prior information relating to the possession offense nor did the State request the trial court to take judicial notice of any prior information contained in the court's files. Because no hearing was held on appellant's motion, the record reflects that the State failed to provide any evidence that the limitations period applicable to the June 21, 2005 information was tolled by the pendency of a prior information charging appellant with the same offense. (2) As this information was limitations-barred on its face and as the State has failed to provide evidence that the limitations period was tolled, we conclude that the trial court erred in denying appellant's Motion to Quash and Exception to Substance of Information.
Accordingly, we reverse the trial court's judgment and remand this case to the trial court for further proceedings consistent with this opinion.
Mackey K. Hancock
Justice
Do not publish.
1. It is a Class B misdemeanor offense to knowingly or intentionally possess a useable quantity of marihuana in an amount less than two ounces. Tex. Health & Safety Code Ann. § 481.121 (Vernon 2003).
2. In an attempt to supplement the appellate record, the State provided this Court a copy of the contents of the court's file in cause number 2003-484127, which does include a prior information filed, on May 9, 2003, against appellant for the instant offense. Also included is an order dismissing cause number 2003-484127, signed on May 20, 2004. However, because our review is limited to the record made in the trial court and presented to us in the appellate record, we cannot and do not consider this additional evidence which was not presented to the trial court. See Cerda v. State, 644 S.W.2d 875, 877 (Tex.App.-Amarillo 1982, no pet.).