Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/2/2015 4:39:06 PM JEFFREY D. KYLE Clerk N O. 03-15-00290-CR THIRD COURT OF APPEALS 10/2/2015 4:39:06 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00290-CR *1 ACCEPTED [7214916] CLERK IN T HE C O U RT OF APPEALS OF T HE T H I RD D I S T R I CT OF TEXAS RAFAEL H E R N A N D E Z - P R A D O, Appellant V.
T HE STATE OF TEXAS
Appellee Appeal in Cause N o. 9767A in the 33'"'^ Judicial District Court of Burnet County, Texas Response of Appellee to Motion to Abate OFFICE OF D I S T R I CT A T T O R N EY 33^^ and 424'^ J U D I C I AL D I S T R I C TS 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 EY FOR APPELLEE Oral Argument Waived *2
1.
H I S T O RY OF TFIE CASE Appellant plead guilty on October 10, 2003, to the first degree felony offense of Burglary of a Habitation w i th Intent to C o m m it a Felony. RR Vol. 2 Page 7.
The trial court deferred entering a finding of guilty and placed Appellant on
community supervision for a period of ten years. RR Vol. 2 Page 11. On
October 1,2013, the State of Texas filed a Request for Adjudication alleging specific
violations of the terms of community supervision. CR Vol. 1 [Cause N o. 9767'
Page 53. On January 7, 2015, Appellant filed his application for post conviction
application for w r it of habeas corpus under art. 11.072 of the Texas Code of
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. On 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 it of Habeas Corpus was on this date denied in
writing. CR Vol. 1 [Cause N o. 9767A] Page 86.
Page 2 of 6 *3 On May 4,2015, the trial court found certain allegations of the State's Request for Adjudication to be True, revoked Appellant's community supervision,
adjudicated Appellant's guilt on the offense of Burglary of a Habitation w i th Intent
to C o m m it a Felony, and sentenced Appellant to serve a term of fifteen (15) years
in the Institutional Division of the Texas Department of Criminal Justice. RR V o l.
5 P ^e 5.
Notice of Appeal of the denial of the art. 11.072 writ application was filed on May 8, 2015. CR Vol. 1 [Cause N o. 9767A] Page 87.
I I. ISSUE A ND A U T H O R I TY Appellant requests that this Court abate this appeal until such time as the trial court makes findings of fact and conclusions of law in regard to its denial of
Appellants art. 11.072 wo-it application.
This Court has authority to order the abatement of 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 *4 In the absence of findings of fact and conclusions of law the appellate court must presume that the trial court implicitly resolved all issues of historical fact and
witness credibility in 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 of Appeal filed by a defendant must be filed w i t h in 30 days after the day sentenced is imposed or suspended in open court, or after the day the trial court
enters an appealable order. Tex. R. App. Proc. Rule 26.2 (a)(1). An "applicant may
appeal under Article 44.02 and Rule 31, Texas Code of Appellate Procedure" if the
trial judge "denied the application in whole or in part." Villanueva v. State, 252
S.W.3d 391,396 (Tex. C r i m. App. 2008).
I I I.
C O N C L U S I ON Appellant's counsel consulted w i th the undersigned prior to the filing of his M o t i on to Abate. The undersigned recognizes M r. Prust's duty to his client in 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 of
jurisdiction considering the date the order denying the w r it application was signed
and the date of the filing of the Notice of Appeal, the undersigned would leave the
Page 4 of 6
issue in the hands of this Court and would neither j o in nor oppose Appellant's
M o t i on to Abate.
Respectfully submitted, OFFICE OF D I S T R I CT A T T O R N EY 33^^ & 424™ J U D I C I AL D I S T R I C TS W i l ly 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 EY F OR T HE STATE OF TEXAS C E R T I F I C A TE OF COMPLIANCE This is to certify that the appropriate portions of the foregoing response contains 613 words according to the WordPerfect™ X7 word count tool.
Page 5 of 6 *6 C E R T I F I C A TE OF SERVICE This is to certify that a true copy of the above and foregoing instrument, together v^ith this proof of service hereof, has been forwarded on the 2nd day of
October 2015, to M r. Gary Prust, counsel for Appellant, by email and eserve.
Page 6 of 6