Opinion
01-20-00859-CR
10-07-2021
Ex Parte Michael Lowry
230th District Court of Harris County Trial court case number: 1685846
ORDER OF ABATEMENT
Sherry Radack, Judge
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