Opinion
No. 10-05-00150-CR
Order issued and filed October 26, 2005. DO NOT PUBLISH.
Appeal fromthe 361st District Court, Brazos County, Texas, Trial Court No. 04-03272-Crf-361. Appeal abated.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
ABATEMENT ORDER
In this appeal of his conviction of possession of a controlled substance, Appellant Joshia Humphries has requested that we abate the appeal so that he can obtain habeas relief in two companion cases (Nos. 04-02182-CRM-361 and 04-03271-CRF-361). After an open guilty plea, the trial court held a punishment hearing for all three cases. One of the issues in the instant appeal is the alleged voidness of the trial court's order that the sentence in this case (seven years) run consecutively with the sentence (eight years) in No. 04-03271-CRF-361. The trial court ordered the sentence (365 days) in No. 04-02182-CRM-361 to run concurrently with the sentence in this case. Appellant claims that in the other two cases, his trial counsel failed to give timely notice of appeal. The two habeas writs allege ineffective assistance. The State has conceded that Appellant is entitled to habeas relief, and the trial court has already granted habeas relief to allow for an out-of-time appeal in No. 04-02182-CRM-361 (misdemeanor). The application for habeas relief in No. 04-03271-CRF-361 is pending in the Court of Criminal Appeals. Appellant states that abatement of this appeal is necessary because the clerk's records in the other two cases are required to address the sentence-cumulation issue in this appeal. The State does not oppose abatement. Accordingly, we abate this cause until the clerk's records in the appeals of Nos. 04-02182-CRM-361 and 04-03271-CRF-361 are filed in this Court. Appellant is ordered to notify the Clerk of this Court of the filing of each of these clerk's records no later than ten days after the dates of their filing. After both clerk's records have been filed, this cause shall be reinstated. After this cause has been reinstated, Appellant's supplemental brief shall be filed within thirty days of reinstatement. The State's brief shall be filed within thirty days of the filing of Appellant's supplemental brief. In the event that the Court of Criminal Appeals denies habeas relief for Appellant for an out-of-time appeal in No. 04-03271-CRF-361, the following orders are made: (1) Appellant is ordered to notify the Clerk of this Court and the Clerk of the District Court of this event within ten days; (2) within thirty days of such notice from Appellant, the Clerk of the District Court shall file a supplemental clerk's record consisting of the clerk's records in Nos. 04-02182-CRM-361 and 04-03271-CRF-361; (3) upon the filing of the supplemental clerk's record, this cause shall be reinstated; (4) after this cause has been reinstated, Appellant's supplemental brief shall be filed within thirty days of reinstatement; and (5) the State's brief shall be filed within thirty days of the filing of Appellant's supplemental brief.