Allen Bernard Gims v. State ( 2014 )

ACCEPTED
01-14-00279-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/31/2014 4:02:30 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00279-CR
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
12/31/2014 4:02:30 PM
CHRISTOPHER A. PRINE
Clerk
IN THE COURT OF APPEALS
OF TEXAS
FIRST SUPREME JUDICIAL DISTRICT
ALLEN BERNARD GIMS, APPELLANT
VS.
STATE OF TEXAS, APPELLEE
MOTION TO ABATE APPEAL
TERRENCE GAISER
LAWYER FOR APPELLANT
(ON APPEAL ONLY)
2900 SMITH STREET, # 220
HOUSTON, TEXAS 77006
SBOT# 07572500
713/ 225-0666
tagaiser@aol.com
NO. 1262460
STATE OF TEXAS § IN THE DISTRICT COURT
§
VS. § HARRIS COUNTY, TEXAS
§
ALLEN BERNARD GIMS § 176TH JUDICIAL DISTRICT
MOTION TO ABATE APPEAL
NOW COMES ALLEN BERNARD GIMS, appellant in the above-
captioned cause, by and through his attorney, TERRENCE GAISER, and
files his Motion to Abate Appeal; for which he would show:
1) This is an appeal from a conviction for the offense of capital murder.
Punishment was assessed at life confinement without parole.
2) As counsel was attempting to complete the brief in this case, counsel
became aware that a motion to suppress appellant’s recorded statement
was heard and ruled upon prior to trial. There is no mention of the
hearing in the clerk’s docket sheet or the court reporter’s record now on
file. In fact, although the statement was admitted in evidence, and is
now in the possession of the District Clerk, it is not evidenced in the
record.
3) Prior to trial appellant filed a motion to suppress his custodial statements.
But, as not reflected by the record, prior to trial, outside the presence of
the jury, the trial court heard evidence for two days on appellant’s
motion to suppress, and at the conclusion of the hearing the trial court
overruled appellant’s motion, and appellant’s statement was later
admitted in evidence. This is not evident from an examination of the
record, but only becomes apparent while examining the testimony.
4) Counsel has only recently learned that a substitute court reporter took
two days of testimony on the motion to suppress appellant’s statement.
The reporter, Mr. John Partain, has informed counsel that he can have the
testimony transcribed and filed with the court by January 10, 2015.
5) Similarly, no findings of fact or conclusions of law have been filed as
required by Art. 38.22, § 6, Tex.Code Crim.Pro. (Vernon 2005).
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this
appeal be abated, that the Court order the Court Reporter, John Partain, to
file the transcript of the proceedings on appellant’s motion to suppress his
statement, that the trial court enter findings of fact and conclusions of law,
that the District Clerk of Harris County prepare a supplemental transcript
containing the testimony and findings and forward the transcript to this
court, and the appeal be reinstated on the filing of such transcript.
RESPECTFULLY SUBMITTED,
S/Terrence A. Gaiser
TERRENCE A. GAISER
2900 SMITH STREET, # 220
HOUSTON, TEXAS 77006
SBOT# 07572500
tagaiser@aol.com
CERTIFICATE OF SERVICE
I CERTIFY THAT A COPY OF THE ABOVE AND
FOREGOING MOTION TO ABATE APPEAL WAS SERVED ON
ALL PARTIES ACCORDING TO THE RULES.
S/Terrence A. Gaiser
TERRENCE A. GAISER