Ex Parte Michael Lowry v. the State of Texas ( 2021 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Ex Parte Michael Lowry
Appellate case number: 01-20-00859-CR
Trial court case number: 1685846
Trial court: 230th District Court of Harris County
This is an appeal from the denial of an application for writ of habeas corpus. See TEX. R.
APP. P. 31. The clerk’s record contains a written order, attached to the application for writ of
habeas corpus, which includes language that the application was granted and additional language,
stating “orally denied on the record on November 20th, 2020.” The hearing reflects that the trial
court orally denied Lowry’s application.
A written and signed appealable order is a prerequisite to invoking this Court’s appellate
jurisdiction. See State v. Sanavongxay, 407 S.W.3d 252, 258–59 (Tex. Crim. App. 2012) (noting
that “our precedent requires that an order be in writing”); TEX. R. APP. P. 25.2. The record before
us contains an order, but the order merely references the trial court’s oral pronouncement. See
Broussard v. State, No. 01-10-00458-CR, 2010 WL 4056861, at *1 (Tex. App.—Houston [1st
Dist.] Oct. 14, 2010, no pet.) (stating that “an oral ruling does not constitute ‘ent[ry of] an
appealable order’ for the purposes of perfecting appeal”). “However, such a defect is curable—in
a case in which there has been an oral trial court ruling but no written order has been entered, we
. . . treat the notice of appeal as prematurely filed, abate the appeal, and remand the case to the trial
court for preparation of an appealable order.” See Dewalt v. State, 417 S.W.3d 678, 685 n.32 (Tex.
App.—Austin 2013, pet. ref’d) (citing TEX. R. APP. P. 27.1(b)).
Accordingly, we abate this appeal, and remand the cause to the trial court for entry of a
signed, written order on Lowry’s habeas application and a certification of Lowry’s right of appeal.
See TEX. R. APP. P. 25.2(a)(2) (requiring trial court to enter certification of defendant’s right of
appeal “each time it enters a judgment of guilt or other appealable order”), (d) (requiring record to
include certification), 44.4(b). Once entered, the signed order and the appropriate trial court
certification of Lowry’s right to appeal shall be included in a supplemental clerk’s record and filed
with this Court no later than November 1, 2021. See TEX. R. APP. P. 34.5(c).
This appeal is abated, treated as a closed case, and removed from this Court’s active docket.
The appeal will be reinstated on this Court’s active docket without further order of the Court when
the supplemental clerk’s record is filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Sherry Radack
 Acting individually  Acting for the Court
Date: ___October 7, 2021____