Rafael Hernandez-Prado v. State

Opinion

ACCEPTED

03-15-00290-CR

7214916

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/2/2015 4:39:06 PM

JEFFREY D. KYLE

CLERK

N O . 03-15-00290-CR

I N T H E C O U R T O F APPEALS FILED IN 3rd COURT OF APPEALS

AUSTIN, TEXAS

O F T H E T H I R D D I S T R I C T O F TEXAS 10/2/2015 4:39:06 PM JEFFREY D. KYLE

Clerk

RAFAEL H E R N A N D E Z - P R A D O , Appellant

V.

T H E STATE O F TEXAS

Appellee

Appeal i n Cause N o . 9767A i n the 33'"'^ Judicial District Court o f Burnet County, Texas

Response of Appellee to Motion to Abate

OFFICE OF D I S T R I C T A T T O R N E Y 33^^ and 424'^ J U D I C I A L D I S T R I C T S Wiley B. McAfee, District Attorney P. O. Box 725, Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 g.bunyard@co.llano.tx.us

By: Gary W . Bunyard

Assistant District Attorney State Bar N o . 03353500

A T T O R N E Y FOR APPELLEE

Oral Argument Waived

1.

H I S T O R Y O F TFIE CASE

Appellant plead guilty on October 10, 2003, to the first degree felony offense o f Burglary o f a Habitation w i t h Intent to C o m m i t a Felony. RR Vol. 2 Page 7. The trial court deferred entering a finding o f guilty and placed Appellant on community supervision for a period o f ten years. RR Vol. 2 Page 11. On October 1,2013, the State o f Texas filed a Request for Adjudication alleging specific violations o f the terms o f community supervision. CR Vol. 1 [Cause N o . 9767' Page 53. O n January 7, 2015, Appellant filed his application for post conviction application for w r i t o f habeas corpus under art. 11.072 o f the Texas Code o f Criminal Procedure. CR Vol. 1 [Cause N o . 9767A] Page 81. The trial court held an evidentiary hearing on February 13, 2015, where the trial court heard testimony from DPS Trooper Frank Randolph and then reset the matter for further proceedings. RR Vol. 3. O n March 25,2015, the trial court heard further evidence and took the Request for Adjudication under advisement. RR Vol. 4 Page 54. The Application for Post Conviction W r i t o f Habeas Corpus was on this date denied i n writing. CR Vol. 1 [Cause N o . 9767A] Page 86.

O n May 4,2015, the trial court found certain allegations o f the State's Request for Adjudication to be True, revoked Appellant's community supervision, adjudicated Appellant's guilt on the offense o f Burglary o f a Habitation w i t h Intent to C o m m i t a Felony, and sentenced Appellant to serve a term o f fifteen (15) years i n the Institutional Division o f the Texas Department o f Criminal Justice. RR V o l . 5 P ^ e 5.

Notice o f Appeal o f the denial o f the art. 11.072 writ application was filed on May 8, 2015. CR Vol. 1 [Cause N o . 9767A] Page 87.

II.

ISSUE A N D A U T H O R I T Y Appellant requests that this Court abate this appeal until such time as the trial court makes findings o f fact and conclusions o f law i n regard to its denial o f Appellants art. 11.072 wo-it application.

This Court has authority to order the abatement o f an appeal to allow the trial court to correct or amend defects or irregularities. Tex. R. App. Proc. Rule 44.3; See Quattkbaum v. State, unpublished opinion at N o . 03-15-00488-CR (Tex. App. - Austin, 2015).

I n the absence o f findings o f fact and conclusions o f law the appellate court must presume that the trial court implicitly resolved all issues o f historical fact and witness credibility i n the light most favorable to its ultimate ruling. State v. Saenz, 411 S.W.3d 488, 495 (Tex. C r i m . App. 2013)(footnote 4).

A Notice o f Appeal filed by a defendant must be filed w i t h i n 30 days after the day sentenced is imposed or suspended i n open court, or after the day the trial court enters an appealable order. Tex. R. App. Proc. Rule 26.2 (a)(1). A n "applicant may appeal under Article 44.02 and Rule 31, Texas Code o f Appellate Procedure" i f the trial judge "denied the application i n whole or i n part." Villanueva v. State, 252 S.W.3d 391,396 (Tex. C r i m . App. 2008).

III.

CONCLUSION

Appellant's counsel consulted w i t h the undersigned prior to the filing o f his M o t i o n to Abate. The undersigned recognizes M r . Prust's duty to his client i n the need to ask this Court for the relief being requested as well as this Court's authority to either grant or deny such request. While there does appear to be an issue o f jurisdiction considering the date the order denying the w r i t application was signed and the date o f the filing o f the Notice o f Appeal, the undersigned would leave the issue i n the hands o f this Court and would neither j o i n nor oppose Appellant's M o t i o n to Abate.

Respectfully submitted,

OFFICE O F D I S T R I C T A T T O R N E Y 33^^ & 424™ J U D I C I A L D I S T R I C T S W i l l y B. "Sonny" McAfee, District Attorney P. O. Box 725

Llano, Texas 78643

Telephone Telecopier (325) 247-5755 (325) 247-5274

Assistant District Attorney State Bar N o . 03353500

A T T O R N E Y F O R T H E STATE O F TEXAS

C E R T I F I C A T E OF COMPLIANCE

This is to certify that the appropriate portions o f the foregoing response contains 613 words according to the WordPerfect™ X 7 word count tool.

C E R T I F I C A T E OF SERVICE

This is to certify that a true copy o f the above and foregoing instrument, together v^ith this proof o f service hereof, has been forwarded on the 2nd day o f October 2015, to M r . Gary Prust, counsel for Appellant, by email and eserve.