COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Ex Parte Tulio Wilfredo Escobar
Appellate case number: 01-15-00154-CR
Trial court case number: 1329944-A
Trial court: 351st District Court of Harris County
Appellant, Tulio Wilfredo Escobar, has perfected an appeal from the trial court’s order
denying his application for a writ of habeas corpus. We abate the appeal and remand the cause to
the trial court for further proceedings.
First, the Clerk of the Court has examined the clerk’s record and found that it does not
comport with the Texas Rules of Appellate Procedure in that it does not include a copy of the
trial court’s certification of appellant=s right of appeal. See TEX. R. APP. P. 25.2(d), 34.5(a)(12),
37.1; see also Ex parte Tarango, 116 S.W.3d 201, 203 (Tex. App.—El Paso 2003, no pet.). This
order constitutes notice to all parties of the defective certification. See TEX. R. APP. P. 37.1.
Accordingly, the trial court shall immediately conduct a hearing at which a representative
of the Harris County District Attorney’s Office and appellant’s counsel, Tom Abbate, shall be
present. Appellant shall also be present for the hearing in person or, if appellant is incarcerated,
at the trial court’s discretion, appellant may participate in the hearing by closed-circuit video
teleconferencing.1
We direct the trial court to:
1) execute a certification of appellant’s right to appeal, indicating whether appellant
has the right to appeal; and
2) make any other findings and recommendations the trial court deems appropriate.
1 Any such teleconference must use a closed-circuit video teleconferencing system that
provides for a simultaneous compressed full motion video and interactive communication
of image and sound between the trial court, appellant, and any attorneys representing the
State or appellant. On appellant’s request, appellant and her counsel shall be able to
communicate privately without being recorded or heard by the trial court or the attorney
representing the State.
See TEX. R. APP. P. 25.2(a)(2), (d), (f), 34.5(a)(12), (c)(2), 37.1. The trial court coordinator shall
set a hearing date and notify the parties. The trial court shall have a court reporter, or court
recorder, record the hearing.
Second, although the trial court held a hearing on appellant’s application and signed a
“Court Directive Order” denying relief, no findings of fact or conclusions of law are included in
the order or with the clerk’s record filed in this Court, as article 11.072, § 7(a) of the Texas Code
of Criminal Procedure requires. We, therefore, remand the cause for the trial court to enter
written findings of fact and conclusions of law, separate and apart from any docket sheet
notations in this case, in conjunction with the trial court’s denial of appellant’s application for a
writ of habeas corpus. See Ex parte Villanueva, 252 S.W.3d 391, 396 (Tex. Crim. App. 2008)
(quoting TEX. CODE CRIM. PROC. ANN. art. 11.072, § 7(a) (West Supp. 2014)) (“‘If the court
determines from the face of an application or documents attached to the application that the
applicant is manifestly entitled to no relief, the court shall enter a written order denying the
application as frivolous.’”; otherwise trial court is required to enter findings of fact and
conclusions of law along with written order); Ex parte Zantos-Cuebas, 429 S.W3d 83, 91–92
(Tex. App.—Houston [1st Dist.] 2014, no pet.) (remanding case for entry of findings of fact and
conclusions of law after holding that trial court erred in denying application as frivolous). We
direct the trial court to make the appropriate findings and conclusions.
The trial court clerk is directed to file a supplemental clerk’s record containing (1) the
certification of appellant’s right of appeal, (2) the trial court’s findings of fact and conclusions of
law in conjunction with the denial of appellant’s application for a writ of habeas corpus, and (3)
any other findings and recommendations the trial court deems appropriate. The supplemental
clerk’s record shall be filed with this Court no later than 30 days from the date of this order. See
TEX. R. APP. P. 34.5(c)(2).
The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental clerk’s
record is filed with the Clerk of this Court.
It is so ORDERED.
Judge’s signature: /s/ Russell Lloyd
Acting individually
Date: March 5, 2015