Kendrick Dwayne Walker v. State ( 2019 )

Motion Denied; Order filed March 5, 2019.
In The
Fourteenth Court of Appeals
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NO. 14-18-00601-CR
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KENDRICK DWAYNE WALKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1520109
ORDER
On January 14, 2019, appellant filed a motion to abate this appeal to permit a
hearing on appellant’s motion for new trial alleging ineffective assistance of counsel.
The motion for new trial was supported by affidavits and was overruled by operation
of law.
As authority for abatement appellant cites Washington v. State, 394 S.W.3d
39, 44–45 (Tex. App.—Houston [1st Dist.] 2012, published order) and Thomas v.
State, 286 S.W.3d 109, 117 (Tex. App.—Houston [14th Dist.] 2009, published
order). In Washington, the First Court of Appeals, citing Thomas, abated the appeal
and remanded for a hearing on appellant’s motion for new trial alleging ineffective
assistance. 394 S.W.3d at 44. The First Court did so after full briefing from appellant
in which appellant argued both the error and prejudice prongs of Strickland v.
Washington, 466 U.S. 668 (1984). See id. In Thomas, this court abated for a hearing
on a motion for new trial, after full briefing by appellant and the State on the issue
of ineffective assistance. 286 S.W.3d at 115–16. Appellant cites no authority
supporting the proposition that an appellate court should abate an appeal for a
hearing on a motion for new trial before the parties file their appellate briefs.
We deny appellant’s motion to abate for a hearing on his motion for new trial
without prejudice to appellant’s ability to re-urge the motion after briefing is
complete.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Jewell and Spain (J. Spain,
dissenting).
Publish.