Allen Bernard Gims v. State

• Court: Court of Appeals of Texas
• Decided: December 31, 2014
• Docket: 01-14-00279-CR
• Status: Published

Opinion

ACCEPTED 01-14-00279-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 12/31/2014 4:02:30 PM CHRISTOPHER PRINE CLERK

NO. 01-14-00279-CR FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/31/2014 4:02:30 PM CHRISTOPHER A. PRINE Clerk IN THE COURT OF APPEALS

OF TEXAS

FIRST SUPREME JUDICIAL DISTRICT

ALLEN BERNARD GIMS, APPELLANT

VS.

STATE OF TEXAS, APPELLEE

MOTION TO ABATE APPEAL

TERRENCE GAISER LAWYER FOR APPELLANT (ON APPEAL ONLY) 2900 SMITH STREET, # 220 HOUSTON, TEXAS 77006 SBOT# 07572500 713/ 225-0666 tagaiser@aol.com NO. 1262460 STATE OF TEXAS § IN THE DISTRICT COURT § VS. § HARRIS COUNTY, TEXAS § ALLEN BERNARD GIMS § 176TH JUDICIAL DISTRICT

MOTION TO ABATE APPEAL NOW COMES ALLEN BERNARD GIMS, appellant in the above-

captioned cause, by and through his attorney, TERRENCE GAISER, and

files his Motion to Abate Appeal; for which he would show:

1) This is an appeal from a conviction for the offense of capital murder.

Punishment was assessed at life confinement without parole.

2) As counsel was attempting to complete the brief in this case, counsel

became aware that a motion to suppress appellant’s recorded statement

was heard and ruled upon prior to trial. There is no mention of the

hearing in the clerk’s docket sheet or the court reporter’s record now on

file. In fact, although the statement was admitted in evidence, and is

now in the possession of the District Clerk, it is not evidenced in the

record.

3) Prior to trial appellant filed a motion to suppress his custodial statements.

But, as not reflected by the record, prior to trial, outside the presence of

the jury, the trial court heard evidence for two days on appellant’s

motion to suppress, and at the conclusion of the hearing the trial court overruled appellant’s motion, and appellant’s statement was later

admitted in evidence. This is not evident from an examination of the

record, but only becomes apparent while examining the testimony.

4) Counsel has only recently learned that a substitute court reporter took

two days of testimony on the motion to suppress appellant’s statement.

The reporter, Mr. John Partain, has informed counsel that he can have the

testimony transcribed and filed with the court by January 10, 2015.

5) Similarly, no findings of fact or conclusions of law have been filed as

required by Art. 38.22, § 6, Tex.Code Crim.Pro. (Vernon 2005).

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

appeal be abated, that the Court order the Court Reporter, John Partain, to

file the transcript of the proceedings on appellant’s motion to suppress his

statement, that the trial court enter findings of fact and conclusions of law,

that the District Clerk of Harris County prepare a supplemental transcript

containing the testimony and findings and forward the transcript to this

court, and the appeal be reinstated on the filing of such transcript.

RESPECTFULLY SUBMITTED,

S/Terrence A. Gaiser TERRENCE A. GAISER 2900 SMITH STREET, # 220 HOUSTON, TEXAS 77006 SBOT# 07572500 tagaiser@aol.com CERTIFICATE OF SERVICE

I CERTIFY THAT A COPY OF THE ABOVE AND FOREGOING MOTION TO ABATE APPEAL WAS SERVED ON ALL PARTIES ACCORDING TO THE RULES.

S/Terrence A. Gaiser TERRENCE A. GAISER