Coley Jr., Tommy Willis v. State

Opinion

Order issued December14, 2012

In The Tourt of Appratz JTifthi Diztrirt uf&'rxas at Dallas

No. 05-11-01317-CR

TOMMY COLEY, Appellant V. THE STATE OF TEXAS, Appellee

ORDER

Before Justices Richter, Lang-Miers, and Myers

We REINSTATE this appeal. We VACATE our order of December 7, 2012 ordering the

trial court to determine whether appellant's amended motion for new trial was filed before or after

the court overruled appellant's original motion for new trial.

In his fourth issue on appeal, appellant contends the trial court should have held a hearing

on his amended motion for new trial, styled "Second Motion for New Trial and Motion in Arrest of

Judgment," filed on October 21, 2011. We agree. In this situation, the appropriate remedy is to

abate the appeal and order the trial court to conduct a hearing on the amended motion for new trial.

Hobbs v. State, 298 S.W.3d 193, 203 (Tex. Crim. App. 2009). Accordingly, we REMAND the case

to the trial court and ORDER the trial court to conduct a hearing on appellant's amended motion

for new trial. See Hobbs, 298 S.W.3d at 200-203 (Tex. Crim. App. 2009); see also Clarke v. State, 270 S.W.3d 573, 580-81 (Tex. Crim. App. 2008); State v. Moore, 225 S.W.3d 556, 568-570 (Tex.

Crim. App. 2007). We further ORDER the trial court to transmit a supplemental reporter's record

from the hearing and a supplemental clerk's record containing the order ruling on the amended

motion for new trial to this Court within THIRTY (30) days of the date of this order.

This appeal is ABATED to allow the trial court to comply with the above orders. The appeal

• shall be reinstated thirty (30) days from the date of this order or when the supplemental records are

received, whichever is earlier.

LANA MYERS PRESIDIN'G JUSTICE