Gabriel Luna v. State

• Court: Court of Appeals of Texas
• Decided: May 21, 2014
• Docket: 07-13-00422-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00422-CR

GABRIEL LUNA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2011-432,524, Honorable John J. "Trey" McClendon, Presiding

May 21, 2014

ON ABATEMENT AND REMAND Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Appellant, Gabriel Luna, appeals from a judgment of conviction for the offense of

sexual assault of a child,1 and sentence of fifty years’ incarceration in the Institutional

Division of the Texas Department of Criminal Justice.2 Appellant filed notice of appeal

on November 27, 2013. The Clerk’s Record was filed on January 6, 2014.

1 See TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West 2011). 2 While appellant was convicted of a second-degree felony, see id. § 22.011(f), he was punished for a first-degree felony because he was found to have been previously finally convicted of a felony, see id. § 12.42(b) (West Supp. 2013). This Court has granted four requests for extension of time to file the reporter’s

record in this cause. Each of these requests have been premised on the reporter’s

case load. The last such extension extended the deadline for filing the reporter’s record

to May 5, 2014. On May 6, 2014, this Court received a fifth request for extension of

time to file the reporter’s record. This fifth request is hereby denied.

In order to ensure that the reporter’s record in this cause is filed as soon as is

practicable, we now abate this appeal and remand it to the trial court for further

proceedings. See TEX. R. APP. P. 35.3(c). Upon remand, the trial court shall determine

whether an alternate or substitute reporter should be appointed to complete the record

in a timely manner.

If it is necessary to hold a hearing to determine this issue, the trial court shall

immediately cause notice of the hearing to be given and shall conduct the hearing as

soon as practicable. If a hearing is held, the trial court shall cause the hearing to be

transcribed. In addition, the trial court shall (1) execute findings of fact and conclusions

of law addressing the foregoing issue, (2) cause a supplemental clerk’s record to be

developed containing its findings of fact and conclusions of law, and any orders it may

issue relating to this matter, and (3) if a hearing is held, cause a reporter’s record to be

developed transcribing any evidence and arguments presented at the hearing. The trial

court shall then file the supplemental clerk’s record and any supplemental reporter’s

record with the clerk of this court on or before June 20, 2014. Should further time be

needed by the trial court to perform these tasks, same must be requested before June

20, 2014.

It is so ordered. Per Curiam