Bobby Ernest Smith v. State

• Court: Court of Appeals of Texas
• Decided: October 22, 2015
• Docket: 09-15-00181-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00181-CR ____________________

BOBBY ERNEST SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee _______________________________________________________ ______________

On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CR31219 ________________________________________________________ _____________

ORDER

Appellant, Bobby Ernest Smith, filed a motion to abate the appeal and to

remand the case to the trial court for an evidentiary hearing on Smith’s motion for

new trial. The trial court scheduled a timely hearing but could not proceed with the

hearing on the motion for new trial because defense counsel did not request a

bench warrant and the appellant was not present for the hearing. Smith contends he

is entitled to an evidentiary hearing on his motion for new trial. See generally Tex.

1 R. App. P. 44.4. The State did not object to an abatement and remand for an

evidentiary hearing on the appellant’s motion for new trial.

We abate the appeal and remand the case to the trial court for a motion for

new trial hearing at which counsel for the State, counsel for the appellant, and

appellant shall be present in person. A supplemental reporter’s record of the

motion for new trial hearing and a supplemental clerk’s record containing any

orders and findings of the trial court shall be filed with the Court of Appeals on or

before November 23, 2015. The appeal shall be reinstated without further order of

this Court when the supplemental record is filed.

ORDER ENTERED October 22, 2015.

PER CURIAM

Before McKeithen, C.J., Kreger and Johnson, JJ.