Chad Fenley Davis v. State ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00009-CR

Chad Fenley Davis,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 04-01287-CRF-85

DISSENTING Opinion

            The review of this criminal judgment should not be delayed by an abatement proceeding.  I see no impediment presented by the current procedural posture of this proceeding, the state of the record, and the issues presented to prevent us from proceeding with a disposition of this appeal on the merits.

            The trial court stated on the record why new counsel was not immediately appointed.  See Davis v. State, ____ S.W.3d ____, at _____, n. 1 (Tex. App.—Waco 2007, order).  There was no objection, correction, or evidence in contravention of his recollection of the events and, thus, we should accept that statement on and for the record as accurate.  Loredo v. State, 159 S.W.3d 920, 923 (Tex. Crim. App. 2004). (“The [Tenth] Court of Appeals disregarded the fact that the trial court’s ruling was based not on the record but on the judge’s erroneous recollection, which was stated on the record explicitly for the parties to correct, if necessary.”)

            Further, we should not abate this proceeding.  In a virtually identical procedural posture, no hearing on a motion for new trial as opposed to allegedly deprivation of counsel to prepare and present a motion for new trial, both yielding the result of failure to have a hearing on a motion for new trial, we do not abate the proceeding.  When a hearing on a motion for new trial is ordered, we remand the proceeding and restart the appellate clock.  Mendoza v. State, 935 S.W.2d 501, 504 (Tex. App.—Waco 1996, pet. ref’d); Brewer v. State, No. 10-04-00001-CR, 2005 Tex. App. LEXIS 874 (Tex. App.—Waco Feb. 2, 2005, no pet.); Barnett v. State, 76 S.W.3d 739 (Tex. App.—Waco 2002, pet. ref’d); Dockery v. State, No. 10-00-00011-CR (Tex. App.—Waco Aug. 22, 2001, no pet.) (not designated for publication).

            Based upon the majority’s perceived deprivation of counsel, that is the proper remedy in this instance.  The majority’s disposition is final and may confuse the appellant about what must be done to protect the right to further review.  Id.

            For these reasons, I would not abate this proceeding; accordingly, I dissent.

                                                                        TOM GRAY

                                                                        Chief Justice

Dissenting opinion delivered and filed July 11, 2007

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Tex. R. App. P. 42.1(a).

      The joint motion was signed by the parties’ attorneys. In the motion, the parties state that they have reached an agreement that ends the controversy and makes the appeal unnecessary. Accordingly, this cause is dismissed with costs to be taxed against the party incurring them.

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Dismissed

Opinion delivered and filed September 15, 1999

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