Williams v. StateWilliams v. State
- Reporters:
- , ,
- Before:
- McCormick
OPINION OF STATE’S MOTION FOR REHEARING ON PETITION FOR DISCRETIONARY REVIEW
PER CURIAM.Our fоrmer opinion in this cause is withdrawn and the following is substituted therefor.
Johnny Dell Williams, henceforth appellant, was convicted by a jury for commit *803 ting the offense of aggravated robbery and assessеd punishment at sixty (60) years’ confinement in the Depаrtment of Corrections and a $10,000 fine.
On direct aрpeal, appellant asserted that hе did not receive the effective assistanсe of counsel because his trial counsel failed to adequately and properly invеstigate the case; in particular he failed to locate and talk to appellant’s purported alibi witnesses.
Appellant’s court appointed attorney on appеal filed a timely and proper motion for new trial, raising this same contention. Also see McIntire v. State, 698 S.W.2d 652 (Tex.Cr.Aрp.1985). No hearing was held on the motion nor is there any evidence that the trial judge ever ruled on the motion for new trial.
The Fort Worth Court of Apрeals, in an unpublished opinion, see Williams v. State, No. 2-87-090-CR, May 18, 1988, аbated the appeal and remanded the cause to the trial court, in order that the triаl court could hold a hearing on the motion fоr new trial.
Originally, this Court refused the State’s petition for discretionary review but then granted the State’s mоtion for rehearing on the petition. The Statе argued that because the law was clear on the issue, this Court should not apply its decision оf Measeles v. State, 661 S.W.2d 732 (Tex.Cr.App.1983), which held that “Ordinarily, this Court will not entertain a petition for discretionary review from an interlocutory order of the Court of Appeals since it does not finally dispose of the case in that court.” We adhere to what we held in Measeles, and decline the State’s invitation to make an exception in this case. In this connection, tо the extent that our holding conflicts with this Court’s decision of Dugard v. State, 688 S.W.2d 524 (Tex.Cr.App.1985), Dugard is expressly overruled. In that regard, we adоpt what Judge Clinton stated in the dissenting opinion that he filed in Dugard:
By entering an order merely abating an aрpeal a court of appeals does not ‘decide a case’ nor does it dеliver ‘a written opinion.’ Its decision in the case and the reason for that decision awaits оutcome of whatever proceeding is to be had in the trial court, reflected in a supplemental record filed in the court of appeals. With that supplemental record bеfore it the court of appeals may then decide the cause with a written opinion giving the reason for its decision, after which the losing party is entitled to seek review by this Court.
Petition for discretionary review refused.
The State’s Motion for Rehearing is overruled.
McCORMICK, P.J., and DUNCAN, J., concur in the result.