Junaid Younus Faroogui v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 21, 2022
• Docket: 05-22-01165-CR
• Status: Published

Opinion

Order entered December 21, 2022

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-22-01165-CR

JUNAID YOUNUS FAROOGUI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause No. F17-45745-S

ORDER

Before the Court is appellant’s November 28, 2022 motion to abate the

appeal and remand for a hearing on appellant’s motion for new trial. The State has

not filed a response. We will grant the motion.

The record shows appellant filed a motion for new trial, supported by

affidavits, raising matters not determinable from the record including deprivation

of his constitutional right to a public trial. Because the trial court judge who

presided over appellant’s trial had recused herself, the presiding judge of the First Administrative Judicial Region transferred the case to the Criminal District Court

No. 4, and then later reassigned it to a visiting judge in the 282nd Judicial District

Court. Although the case was reassigned to the 282nd Judicial District Court, there

was a delay in transferring the case back from the Criminal District Court No. 4.

The motion was eventually set for hearing outside the seventy-five-day window

when a motion for rehearing can be heard and was overruled by operation of law.

See TEX. R. APP. P. 21.8(a), (c).

Because appellant raised matters not determinable in the record and

supported his allegations with appropriate affidavits, we conclude he was entitled

to a hearing on his motion for new trial. See Smith v. State, 286 S.W.3d 333, 338

(Tex. Crim. App. 2009). We agree with appellant that the proper course of action is

to abate this case to the trial court for a hearing on the motion for new trial. See

TEX. R. APP. P. 44.4(a); Montelongo v. State, 631 S.W.3d 734, 738–39 (Tex.

App.—El Paso 2021, no pet.) (mem. op.).

We ORDER the presiding judge of the First Administrative Judicial Region

to assign this case, within THIRTY DAYS of the date of this order, to a trial court

judge for the purpose of conducting a hearing on appellant’s motion for new trial.

We further ORDER that the trial court judge assigned to the case by the presiding

administrative judge conduct a hearing on appellant's motion for new trial within

–2– NINETY DAYS of the date of this order. The trial court shall make findings of

fact and conclusions of law.

A supplemental reporter’s record of the hearing, and a supplemental clerk’s

record containing the trial court’s findings of fact and conclusions of law and any

order the trial court enters, shall be due within THIRTY DAYS from the date of

the hearing.

We DIRECT the Clerk to transmit copies of this order to the Honorable

Raymond G. Wheless, Presiding Judge, First Administrative Judicial Region; to

Felicia Pitre, Dallas County District Clerk; and to counsel for the parties.

The appeal is ABATED to allow the presiding administrative judge to

assign the case and to allow the assigned trial court judge to conduct the hearing on

the motion for new trial. The appeal shall be reinstated when the supplemental

clerk’s record is filed or 120 days from the date of this order, whichever is earlier.

/s/ LANA MYERS JUSTICE

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