Opinion
14-22-00923-CR
04-25-2023
FREDERICK WHITAKER IV, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1713238
Panel Consists of Wise, Zimmerer, and Wilson Justices.
ORDER
PER CURIAM
Before the court is a motion to abate this appeal for a hearing on appellant's motion for new trial. We deny the motion.
This is an appeal from a judgment signed December 9, 2022, following appellant's guilty plea. Appellant was remanded into custody after being sentenced. On January 9, 2023, appellant timely filed a motion for new trial with the trial court asserting in large part that the State wrongfully presented evidence during appellant's sentencing hearing related to appellant's alleged possession of a prohibited weapon. The motion was supported by an affidavit from appellant's trial counsel concerning the nature of plea negotiations with an attorney for the State. Appellant sought a hearing on January 26, 2023, on the motion for new trial, and counsel sought to have appellant made available to attend the hearing in person. But due to logistics issues associated with appellant's transfer to the Texas Department of Criminal Justice, it became clear on January 20, 2023, that appellant would not be made available for the hearing.
The motion was filed 31 days after the judgment was signed and sentence was imposed. Normally, the motion would have had to be filed within 30 days of sentence being imposed or suspended in order to be timely, see Tex.R.App.P. 21.4(a), however, since a Sunday was 30 days after the sentence was imposed, the motion was timely filed. See Tex.R.App.P. 4.1(a).
Consequently, appellant's counsel sought to reset the motion for a hearing on February 20, 2023, and also requested that the trial court issue a bench warrant for appellant in association with that hearing. The trial court issued that bench warrant on February 15, 2023. The record reflects the bench warrant was returned on February 17, 2023, due to appellant being unable to be transported back to court in time for the hearing. The hearing occurred on February 20, 2023, in appellant's absence, and during the hearing, appellant's counsel on appeal requested the creation of a supplemental reporter's record detailing efforts to obtain appellant's presence for a hearing on the motion for new trial.
Although appellant indisputably had a right to be present for a hearing on his motion for new trial, see Coons v. State, 758 S.W.32d 330, 339 (Tex. App.- Houston [14th Dist.] 1988, pet. ref'd), we disagree that abatement of this appeal for a trial court hearing at which appellant would be present is appropriate here. Texas Rule of Appellate Procedure 44.4 would provide a mechanism for granting the relief appellant seeks if that relief was appropriate. This rule permits appellate courts to abate appeals for further proceedings in the trial court to develop the record further, so as to allow an appeal to be properly presented. See Fakeye v. State, 227 S.W.3d 714, 717-18 (Tex. Crim. App. 2007). That rule requires two circumstances to be present: (1) "the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals"; and (2) "the trial court can correct its action or failure to act." Tex. R. App. 44.4(a). When an error related to trial court proceedings does not impact the presentation of an appeal, then Rule 44.4 does not provide for an abatement for further proceedings to remedy that error. See Fakeye, 227 S.W.3d at 718 (holding that although a trial court erred by failing to admonish a defendant regarding deportation consequences of a guilty plea, the error was not remediable under Rule 44.4 because "it did not prevent the proper presentation of the case to the appellate court").
Appellant's request does not satisfy the first criterion of Rule 44.4. Even assuming appellant's absence can be tied to an erroneous action or failure that could support a remedy pursuant to Rule 44.4, there is no indication appellant's absence from the trial court's February 20, 2023 hearing prevented the proper presentation of this appeal. The trial court, after all, did ultimately hold a hearing on appellant's motion for new trial at which appellant's counsel on appeal was present. It appears appellant's counsel had the opportunity to develop the record on appellant's motion for new trial during that hearing. Moreover, it appears from the record that, although appellant's trial counsel and the attorney for the State who participated in plea negotiations might have provided testimony or other evidence that could clarify the content of appellant's plea agreement, there is no indication that appellant himself could shed further light on his plea agreement's terms. Accordingly, irrespective of whether appellant may be entitled to relief of some sort regarding his absence from the trial court's February 20, 2023 hearing on his motion for new trial, abatement for another hearing on that motion is not appropriate. See Shumate v. State, 649 S.W.3d 240, 244 n.3 (Tex. App.-Dallas 2021, no pet.) (observing that while complained-of errors "form[ed] the basis of the appeal," abatement was not required because those errors did "not prevent the proper presentation of error"). The appeal can be properly presented despite appellant's absence from a hearing on his motion for new trial.
For the reasons discussed above, we deny appellant's motion to abate this appeal for a hearing on appellant's motion for new trial.