IN THE
TENTH COURT OF APPEALS
No. 10-07-00206-CR
Willie Edward Davis,
Appellant
v.
The State of Texas,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 06-01284-CRF-85
CLARIFICATION OF MARCH 25, 2009 ABATEMENT ORDER
In August of 2008, this appeal was abated for a hearing regarding Davis’s recusal motion. The hearing was held on February 13, 2009, Judge Magre presiding.
In an effort to expedite the disposition of the appeal, given the delay caused by the abatement, we sua sponte reinstated the appeal and set a briefing schedule on March 3, 2009. We did this after learning the recusal hearing had been held and a ruling rendered. We were not aware of any other pending matters.
On March 6, 2009, we received a copy of a letter from Davis’s attorney, Richard Wetzel, to Judge Magre as follows:
I have received notice from the Court of Appeals that the above styled and numbered cause was reinstated on the Court’s docket on March 3, 2009. It is both conventional wisdom and the law that no two courts can have jurisdiction over the same case at the same time. See Tex. R. App. P. 25.2(g). In view of the action by the Court of Appeals, I do not believe you have jurisdiction in this case any longer.
Any further disputes concerning the Commission on Judicial Conduct’s failure to comply with your previous order can now be resolved by Chief Justice Tom Gray and Justices Reyna and Davis. Thank you for your attention and cooperation in this matter.
It appeared to the Court, based upon the content of Wetzel’s letter to Judge Magre, that Wetzel did not believe all the issues had been resolved but that, due to the reinstatement of the appeal, Judge Magre no longer had jurisdiction to resolve any of the remaining issues.
In our effort to expedite the appeal by reinstating it before the parties requested reinstatement, we had apparently prematurely cut off the trial court’s jurisdiction before all the pending issues were resolved. We, therefore, returned jurisdiction to the trial court by again abating the appeal. Davis has now moved for clarification of the abatement order stating
Counsel for appellant [Wetzel] is at a loss to know what the Court learned, who it learned it from, when it learned it, and what issues are in need or may be in need of resolution by the trial court.
The Court now clarifies its prior order.
We received a copy of the March 6, 2009 letter quoted at length above from Wetzel to Judge Magre. We presumed, based upon the content of that letter, that some issues remained unresolved; otherwise, we saw no need for the letter. Accordingly, out of respect for the structure of the judicial system and deferring to the preference to have all appropriate disputes first ruled on by the trial court, we put the trial court back in a position to decide the disputes that generated the March 6, 2009 letter from Wetzel to Judge Magre. Further, we stated we would await reinstatement of the case until we were notified by the trial court or the parties that the case was ready to proceed on appeal.
With this clarification, we continue to await notification from the trial court or motion by the parties that the issues, whatever they were, inferentially referred to in the March 6, 2009 letter, were resolved and that the appeal is ready for reinstatement.
On May 12, 2009, appellant filed a second motion to clarify the abatement order in which he noted we had not ruled on the first motion, and implied that we failed to comply with our duties by failing to timely rule on his first motion. Because the appeal is abated, we have no jurisdiction, at this time, to rule on any pending motions but, nevertheless, provide this clarification to the confusion created by the March 6, 2009 correspondence.
PER CURIAM
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Clarification of Abatement Order delivered and filed June 3, 2009
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