Opinion
NO. 14-18-00601-CR
03-05-2019
KENDRICK DWAYNE WALKER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court Harris County, Texas
Trial Court Cause No. 1520109
ORDER
On January 14, 2019, appellant filed a motion to abate this appeal to permit a hearing on appellant's motion for new trial alleging ineffective assistance of counsel. The motion for new trial was supported by affidavits and was overruled by operation of law.
As authority for abatement appellant cites Washington v. State, 394 S.W.3d 39, 44-45 (Tex. App.—Houston [1st Dist.] 2012, published order) and Thomas v. State, 286 S.W.3d 109, 117 (Tex. App.—Houston [14th Dist.] 2009, published order). In Washington, the First Court of Appeals, citing Thomas, abated the appeal and remanded for a hearing on appellant's motion for new trial alleging ineffective assistance. 394 S.W.3d at 44. The First Court did so after full briefing from appellant in which appellant argued both the error and prejudice prongs of Strickland v. Washington, 466 U.S. 668 (1984). See id. In Thomas, this court abated for a hearing on a motion for new trial, after full briefing by appellant and the State on the issue of ineffective assistance. 286 S.W.3d at 115-16. Appellant cites no authority supporting the proposition that an appellate court should abate an appeal for a hearing on a motion for new trial before the parties file their appellate briefs.
We deny appellant's motion to abate for a hearing on his motion for new trial without prejudice to appellant's ability to re-urge the motion after briefing is complete.
PER CURIAM Panel consists of Chief Justice Frost and Justices Jewell and Spain (J. Spain, dissenting). Publish.