Opinion
NO. 14-17-00644-CR
01-25-2018
OMAR SALAZAR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court Galveston County, Texas
Trial Court Cause No. 15CR0517
ABATEMENT ORDER
This is an appeal from the revocation of deferred adjudication community supervision. Appellant filed a motion to remand the case for the trial court to enter findings of fact. Appellant also filed a motion to extend time to file his brief pending our disposition of the motion for remand.
The motion to remand states in relevant part:
In the State's third motion [to adjudicate and revoke community supervision], there are two identical allegations in two different
paragraphs. Namely, paragraphs 1g and 1h both state the following, "On or about the 9TH day of October, A.D., 2016 in Galveston County, Texas, the said Defendant, Omar Salazar did then and there commit the offense of Assault Causes Bodily Injury".Appellant says he cannot adequately prepare a brief without clarification of which allegation was found true by the trial court because the evidence in the record is different and the issues on appeal may be different for the two allegations.
At the beginning of the hearing on the motion, the State abandoned paragraphs 1a and 1h. From the reading of the Reporter's Record, there was testimony that Appellant allegedly assaulted two different complainants on that same day—October 9, 2016. The trial court found the allegation in 1g "True". Both the Clerk's Record and the Reporter's Record are silent as to which complainant the allegation was found true and which complainant's allegation was abandoned.
According to the motion's certificate of conference, the State has no position on the motion.
A court of appeals must not affirm or reverse a judgment if (1) an erroneous action by the trial court prevents the proper presentation of a case to the court of appeals; and (2) the trial court can correct its action. See Tex. R. App. P. 44.4(a).
Accordingly, we GRANT the motion to remand, ABATE this appeal, and ORDER as follows: The judge of the 405th District Court shall make any findings necessary to address the portion of appellant's motion quoted above and may conduct a hearing in order to make the findings. The judge shall see that a supplemental clerk's record containing the findings, and a transcript of any hearing conducted, are filed with this court by February 26, 2018.
The 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 when the trial court's findings are filed in this court. The court will also consider an appropriate motion to reinstate the appeal filed by either party, or the court may reinstate the appeal on its own motion.
Appellant's motion to extend time to file his brief is GRANTED. The brief will be due 30 days after the appeal is reinstated.
PER CURIAM