Opinion
04-22-00289-CR
09-19-2023
Chad Wade SPENCE, Appellant v. The STATE of Texas, Appellee
From the 81st Judicial District Court, Wilson County, Texas Trial Court No. CRW2101019 Honorable Russell Wilson, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Patricia O. Alvarez, Justice, Beth Watkins, Justice
ORDER
PER CURIAM
On September 5, 2023, appellant filed a "Motion to Abate to Reset Timetables to File Motion for New Trial" in which he asserts that he wishes to file an out-of-time motion for new trial based on claims that he received ineffective assistance of counsel at trial. Appellant contends his trial counsel was ineffective because counsel: (1) did not object to the reliability of a testifying officer's identification of appellant or to the admissibility of a booking photo of appellant; and (2) discouraged appellant from filing a pro se motion for new trial.
Appellant filed a pro se motion for new trial on April 18, 2022, and that motion is included in the appellate record.
Appellant may raise the ineffective assistance claims he seeks to develop in a post-conviction application for writ of habeas corpus. See Pettway v. State, 4 S.W.3d 390, 391 (Tex. App.-Houston [1st Dist.] 1999, order) (per curiam) (holding defendant failed to show good cause to suspend appellate rules to allow him to file out-of-time motion for new trial because he could raise ineffectiveness claim in post-conviction habeas corpus proceeding); Fuentes v. State, No. 01-04-01018-CR, 2006 WL 2640807, at *2 (Tex. App.-Houston [1st Dist.] Sept. 14, 2006, no pet.) (mem. op., not designated for publication) (denying defendant's motion to abate because ineffectiveness issues defendant sought to develop could "properly be raised in a post-conviction writ of habeas corpus [proceeding]"); see also Griffith v. State, 507 S.W.3d 720, 721-23 (Tex. Crim. App. 2016) (Hervey, J., concurring) (agreeing appellant was not entitled to out-of-time motion for new trial because ineffective assistance claims may "be addressed on habeas"). This court has previously refused to abate an appeal for this purpose because an ineffective assistance claim may be raised in a post-conviction habeas corpus proceeding. Bowler v. State, 822 S.W.2d 334, 335 (Tex. App-San Antonio 1992, pet. ref d).
For these reasons, we DENY appellant's "Motion to Abate to Reset Timetables to File Motion for New Trial."
It is so ORDERED on September 19, 2023.