*1 granting refusing “In a new judge up, shall not sum discuss upon
comment evidence simply grant
but shall the mo- refuse
tion, party.” prejudice to either
The trial overruled elaboration.” “without LEWIS, Appellant,
Irvin
No. 250-85. Criminal 4, 1986. *2 (court Ken J. McLean appointed ap- on In inadequacy, appel- correct this peal only), Houston, late appellant. steps. for counsel took several 11,1983, July On appellant filed a motion Holmes, Jr., Atty. John B. Dist. & J. to extend the time to a file brief with the Harvey Buchanan, Jim Hudson & Asst. Appeals Fourteenth Court of in Harris Houston, Huttash, Attys., Dist. Robert County. motion, In request- appellant Austin, Atty., State’s for the State. 1, 1983, ed an extension September order to develop evidence to supplement the trial record a hearing habeas which 2, August for Ap- set OPINION ON APPELLANT’S PETITION pellant claimed he would show that his FOR DISCRETIONARY REVIEW prior on fatally conviction was based 21, July 1983, defective indictment.1 On WHITE, Judge. Appeals appellant’s denied trial, After jury was convict- motion, time but extended the for him to ed of degree felony forgery. the third 1, August file his brief to V.T.C.A., 32.21(d). Penal Code Sec. 25,1983, July On filed a motion jury punishment eight assessed his motion, appeal. to abate his In that he years’ confinement and a fine. On $974.64 prayed Appeals abate the convicted, 25, the date February appeal and order the trial court to conduct 1983, appellant gave notice of supplement an granted appellant’s petition on two 4, 1983, August trial record. On the Court grounds for review: whether the denied motion. Appeals erred by holding However, day, on same court had no hold evidentia- appellant’s appeal abated the be- ry hearing after of an appeal; appellate cause no brief had been filed. whether the Court of erred remanded the case to failing to reach the issue of the effective the trial court “so that it could see that assistance of counsel at trial. Because of the nature of these State, appeal.” Lems counsel on review, for it is for this Court to (Tex.App. S.W.2d 243 [14th] —Houston review the events that occurred after 1985). pellant was convicted. 8, 1983, August his On after had counsel, Present not the trial abated, appellant filed a motion for appointed 3, 1983, repre- on March rehearing before the Court sent appeal. Appellant on did motion, appellant requested this that his 14, file a motion for new trial. On June abated so that 1983, the trial court ruled that the record hearing held to could be issue been approved objection. Af- that trial counsel rendered ineffective as- ter the record was transmitted to the Court sistance. court overruled the Appeals, appellant’s on appeal 18, 15, counsel August September 1983. On inadequate realized it was to sustain the petition filed a for dis- charge Court, cretionary seeking ineffective assistance of trial with this which he wanted to abatement of order for the raise his trial, concluded, application stage 1. Before filed an for probation, permission in which he swore that had never with- court's counsel asked the However, felony. before during of a been convicted appellant's application probation. for draw the punishment phase appel- request. These ac- testify took lant the stand to on his own behalf. for the tions trial counsel form basis stand, appellant While on the testified that in ineffectively assertion that he granted probation 1977 he conviction represented at trial. forgery. testimony punishment After hearing trial court to conduct a conduct a rehearing. raised a tran- appellate issues record with 11, 1984, January refused this Court script” after the petition. the appellant’s appellant. court denied that no The trial court “had au- supra. point Ap- At this thority to cause the record ‘to peals’ August 4, *3 which abat- truth’ a matter that was not a about appeal ed of in appellant, the was still permit the record. We refuse to the record effect. The in manner supplemented record the to be court re- the trial where it had been Lewis, counsel,” turned, sought by su- to resourceful pursuant the mandate abate- February 22,1984, pra, ment. the at 247. in the trial a motion for an
filed
court
Evans,
of abatement. The
present trial, or in evidence at a motion for TEAGUE, joins. trial, that he was
new rendered ineffective Appellant
assistance trial counsel. entitled
develop such evidence after his
abated. disagree with first
ground for review. The Court of err did not when it held that the trial court DeLUNA, Appellant, Carlos no authority to hold the evidentiary
hearing in the instant case. That action legitimate represented a restriction jurisdiction of a trial court after the abate- 69,245. No. ground The first review is Concerning ground the second correctly Court of presented by
fused consider the evidence post-abatement
appellant at
hearing. That evidence was not or in a motion for new trial. It
was made a
for the first hear Therefore, there was no evidence to
support appellant’s claim of ineffective as
sistance trial counsel. The reach that issue. ground
The second of review is overruled. affirm the decision
CLINTON, concurs in the result.
ONION, Presiding Judge, concurring. pur- abatement was for a limited
pose. purpose should have ac-
complished and the record returned to The trial court turned purpose
aside from the
and held an at the re-
quest and forwarded the
record of that appear pur- It does
pose of the abatement ever accom-
plished. beyond its acted