ACCEPTED
03-15-00289-CR
7214456
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/2/2015 4:28:18 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00289-CR
I N T H E C O U R T O F APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
O F T H E T H I R D D I S T R I C T OF TEXAS 10/2/2015 4:28:18 PM
JEFFREY D. KYLE
Clerk
RAFAEL H E R N A N D E Z - P R A D O ,
Appellant
V.
THE STATE O F TEXAS
Appellee
Appeal in Cause N o . 9767 in the
33'^'* Judicial District Court of Burnet County, Texas
R e s p o n s e of Appellee to Motion to Abate
OFFICE O F D I S T R I C T A T T O R N E Y
33^^ and 424*^ J U D I C L \ D I S T R I C T S
Wiley B. McAfee, District Attorney
P. O. Box 725, Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
g.bunyard@co.llano.tx.us
By: Gary W . Bunyard
Assistant District Attorney
State Bar N o . 03353500
A T T O R N E Y FOR APPELLEE
Oral Argument Waived
L
H I S T O R Y O F T H E CASE
Appellant plead guilty on October 10, 2003, to the first degree felony offense
o f Burglary o f a Habitation w i t h Intent to C o m m i t a Felony. RR Vol. 2 Page 7.
The trial court deferred entering a finding o f guilty and placed Appellant on
community supervision for a period o f ten years. RR V o l . 2 Page 11. On
October 1,2013, the State o f Texas filed a Request for Adjudication alleging specific
violations o f the terms o f community supervision. CR Vol. 1 [Cause N o . 9767]
Page 53. The trial court held an evidentiary hearing on February 13, 2015, where
the trial court heard testimony from DPS Trooper Frank Randolph and then reset
the matter for further proceedings. RR Vol. 3. O n March 25, 2015, the trial court
heard further evidence and took the matter under advisement. RR Vol. 4 Page 54.
O n May 4, 2015, the trial court found certain allegations o f the State's Request for
Adjudication to be True, revoked Appellant's community supervision, adjudicated
Appellant's guilt on the offense o f Burglary o f a Habitation w i t h Intent to C o m m i t
a Felony, and sentenced Appellant to serve a term o f fifteen (15) years i n the
Institutional Division o f the Texas Department o f Criminal Justice. RR Vol. 5
Page 5. This appeal follows. CR Vol. 1 [Cause N o . 9767] Page 72. Collateral w i t h
this appeal is the appeal o f the trial court's denial o f Appellant's application for writ
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o f habeas corpus filed pursuant to art. 11.072 o f the Texas Code o f Criminal
Procedure. See 03-15-00290.
11.
ISSUE A N D A U T H O R I T Y
Appellant requests that this Court abate this appeal until such time as the trial
court makes findings o f fact and conclusions o f law i n 03-15-00290.
This Court has authority to order the abatement o f an appeal to allow the trial
court to correct or amend defects or irregularities. Tex. R. App. Proc. Rule 44.3; See
Quattlebaum v. State, unpublished opinion at N o . 03-15-00488-CR (Tex. App. -
Austin, 2015).
I n the absence o f findings o f fact and conclusions o f law the appellate court
must presume that the trial court implicitly resolved all issues o f historical fact and
witness credibility i n the light most favorable to its ultimate ruling. State v. Saenz,
411 S.W.3d 488,495 (Tex. C r i m . App. 2013)(footnote 4).
III.
CONCLUSION
Appellant's counsel consulted w i t h the undersigned prior to the filing o f his
M o t i o n to Abate. The undersigned recognizes M r . Prust's duty to his client i n the
Page 3 o f 5
need to ask this Court for the relief being requested as well as this Court's authority
to either grant or deny such request. The undersigned would leave the issue i n the
hands o f this Court and would neither j o i n nor oppose Appellant's M o t i o n to Abate.
Respectfully submitted,
OFFICE O F D I S T R I C T A T T O R N E Y
33"^ & 424™ J U D I C I A L D I S T R I C T S
W i l l y B. "Sonny" McAfee, District Attorney
P. O . Box 725
Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
fery^C^unyaE^
Assistant District Attorney
State Bar N o . 03353500
A T T O R N E Y FOR TFIE STATE O F TEXAS
C E R T I F I C A T E OF COMPLIANCE
This is to certify that the appropriate portions o f the foregoing response
contains 448 words according to the WordPerfect™ X 7 word count tool.
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C E R T I F I C A T E OF SERVICE
This is to certify that a true copy o f the above and foregoing instrument,
together w i t h this proof o f service hereof, has been forwarded on the 2nd day o f
October 2015, to M r . Gary Prust, counsel for Appellant, by email and eserve.
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