Gabriel Luna v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00422-CR
GABRIEL LUNA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2011-432,524, Honorable John J. "Trey" McClendon, Presiding
May 21, 2014
ON ABATEMENT AND REMAND
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Gabriel Luna, appeals from a judgment of conviction for the offense of
sexual assault of a child,1 and sentence of fifty years’ incarceration in the Institutional
Division of the Texas Department of Criminal Justice.2 Appellant filed notice of appeal
on November 27, 2013. The Clerk’s Record was filed on January 6, 2014.
1
See TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West 2011).
2
While appellant was convicted of a second-degree felony, see id. § 22.011(f), he was
punished for a first-degree felony because he was found to have been previously finally
convicted of a felony, see id. § 12.42(b) (West Supp. 2013).
This Court has granted four requests for extension of time to file the reporter’s
record in this cause. Each of these requests have been premised on the reporter’s
case load. The last such extension extended the deadline for filing the reporter’s record
to May 5, 2014. On May 6, 2014, this Court received a fifth request for extension of
time to file the reporter’s record. This fifth request is hereby denied.
In order to ensure that the reporter’s record in this cause is filed as soon as is
practicable, we now abate this appeal and remand it to the trial court for further
proceedings. See TEX. R. APP. P. 35.3(c). Upon remand, the trial court shall determine
whether an alternate or substitute reporter should be appointed to complete the record
in a timely manner.
If it is necessary to hold a hearing to determine this issue, the trial court shall
immediately cause notice of the hearing to be given and shall conduct the hearing as
soon as practicable. If a hearing is held, the trial court shall cause the hearing to be
transcribed. In addition, the trial court shall (1) execute findings of fact and conclusions
of law addressing the foregoing issue, (2) cause a supplemental clerk’s record to be
developed containing its findings of fact and conclusions of law, and any orders it may
issue relating to this matter, and (3) if a hearing is held, cause a reporter’s record to be
developed transcribing any evidence and arguments presented at the hearing. The trial
court shall then file the supplemental clerk’s record and any supplemental reporter’s
record with the clerk of this court on or before June 20, 2014. Should further time be
needed by the trial court to perform these tasks, same must be requested before June
20, 2014.
It is so ordered.
Per Curiam
2