ACCEPTED
03-15-00290-CR
7214916
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/2/2015 4:39:06 PM
JEFFREY D. KYLE
CLERK
N O . 03-15-00290-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 O F TEXAS 10/2/2015 4:39:06 PM
JEFFREY D. KYLE
Clerk
RAFAEL H E R N A N D E Z - P R A D O ,
Appellant
V.
T H E STATE O F TEXAS
Appellee
Appeal i n Cause N o . 9767A i n the
33'"'^ Judicial District Court o f Burnet County, Texas
Response of Appellee to Motion to Abate
OFFICE OF D I S T R I C T A T T O R N E Y
33^^ and 424'^ J U D I C I A 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
1.
H I S T O R Y O F TFIE 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 Vol. 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. O n January 7, 2015, Appellant filed his application for post conviction
application for w r i t o f habeas corpus under art. 11.072 o f the Texas Code o f
Criminal Procedure. CR Vol. 1 [Cause N o . 9767A] Page 81. 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 Request for Adjudication under advisement. RR Vol. 4 Page 54. The
Application for Post Conviction W r i t o f Habeas Corpus was on this date denied i n
writing. CR Vol. 1 [Cause N o . 9767A] Page 86.
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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 V o l .
5 P ^ e 5.
Notice o f Appeal o f the denial o f the art. 11.072 writ application was filed on
May 8, 2015. CR Vol. 1 [Cause N o . 9767A] Page 87.
II.
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 regard to its denial o f
Appellants art. 11.072 wo-it application.
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
Quattkbaum v. State, unpublished opinion at N o . 03-15-00488-CR (Tex. App. -
Austin, 2015).
Page 3 of 6
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).
A Notice o f Appeal filed by a defendant must be filed w i t h i n 30 days after the
day sentenced is imposed or suspended i n open court, or after the day the trial court
enters an appealable order. Tex. R. App. Proc. Rule 26.2 (a)(1). A n "applicant may
appeal under Article 44.02 and Rule 31, Texas Code o f Appellate Procedure" i f the
trial judge "denied the application i n whole or i n part." Villanueva v. State, 252
S.W.3d 391,396 (Tex. C r i m . App. 2008).
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
need to ask this Court for the relief being requested as well as this Court's authority
to either grant or deny such request. While there does appear to be an issue o f
jurisdiction considering the date the order denying the w r i t application was signed
and the date o f the filing o f the Notice o f Appeal, the undersigned would leave the
Page 4 of 6
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
Assistant District Attorney
State Bar N o . 03353500
A T T O R N E Y F O R T H E 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 613 words according to the WordPerfect™ X 7 word count tool.
Page 5 of 6
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 v^ith 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.
Page 6 of 6
Rafael Hernandez-Prado v. State
Combined Opinion