dissenting.
I dissent. Nothing in the Texas Rules of Appellate Procedure or in the Code of Criminal Procedure permits us to abate this appeal and reinstate it to allow the appellant to file a motion for new trial.
The majority abates this case on the ground that the appellant was not represented by counsel at a critical stage in the crimi*60nal prosecution. The appellant was represented by counsel. The majority equates the appellant’s ineffective representation to no representation. If we could re-start every case in which the appellant contends he was represented by ineffective counsel, there would never be an end to a criminal prosecution. We simply have no authority to do what the majority does today.
Contrary to the majority’s opinion, Tex. RApp.P. 2(b) does not permit us to suspend the rules of procedure in this case. The Court of Criminal Appeals recently held that rule 2(a) does not permit a court of appeals to enlarge the appellate time periods. Garza v. State, 896 S.W.2d 192, 194 (Tex.Crim.App.1995). Rule 2(a) specifically states that nothing in the rules permits the court of appeals to extend its jurisdiction. Id.; Torres v. State, 804 S.W.2d 918, 920 (Tex.App.—El Paso 1991, op. on order). By abating this appeal we are extending both our jurisdiction and that of the trial court.
I disagree with this Court’s decision in Callis v. State, 756 S.W.2d 826, 827 (Tex.App.—Houston [1st Dist.] 1988, no pet.), where we set aside a sentence and remanded the case to permit the defendant to file a motion for new trial.
I would deny the motion to abate and consider the appeal on the merits of the brief. The appellant should proceed with his direct appeal and may initiate a writ of habe-as corpus action in the trial court. Torres, 804 S.W.2d at 920.