Paul Joaquin Ponce v. the State of Texas

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00024-CR

PAUL JOAQUIN PONCE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court Potter County, Texas Trial Court No. 65,591-A, Honorable John B. Board, Presiding by Assignment

August 31, 2022 ORDER OF ABATEMENT AND REMAND Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, Paul Joaquin Ponce, appeals from the trial court’s judgment

adjudicating guilt and convicting him of the aggravated sexual assault of a child.1 After

initially adjudicating guilt, the trial court ordered the preparation of a presentence

investigation report (PSI) per article 37.07, section 3(d) of the Texas Code of Criminal

Procedure. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(d). Mention was made of the

1 TEX. PENAL CODE ANN. § 22.021(a)(3)(B). report at the sentencing hearing. The record does not indicate whether it was admitted

into evidence, though. Nor does it indicate if the trial court considered it prior to levying

sentence. Yet, the trial court apparently alluded to it at the hearing. Since then, appellate

counsel attempted to obtain a copy of the document from various sources, including the

community supervision department, trial counsel, and the prosecutor. He met with no

success.

Before us is Appellant’s Motion to Abate Appeal. Through it, he seeks

supplementation of the appellate record with a copy of the PSI. By order dated August

17, 2022, the motion was denied without prejudice, and appellant was given until August

24, 2022, to provide information or authority showing the trial court had considered the

document or intended it to be part of the hearing record susceptible to consideration on

appeal. In response to this Court’s order, appellant filed a subsequent Motion to Abate

Appeal seeking reconsideration of this Court’s denial of the original motion. By Order of

the Court, we grant the motion, abate the appeal, and remand the cause to the trial court.

On remand, the trial court is directed to hold a hearing upon notice to the parties and

determine the following matters:

(1) whether a PSI was prepared by the community supervision office; and, if so,

(2) whether it was admitted into evidence for purposes of sentencing.

Should the trial court determine that a PSI was prepared and admitted into

evidence, it shall cause a copy of the PSI to be included in a supplemental clerk’s record

with any necessary findings of fact and conclusions of law. The supplemental clerk’s

record shall be filed on or before September 30, 2022. Appellate briefing deadlines are

suspended until further order of the Court.

2 It is so ordered.

Per Curiam

Do not publish.