                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-15-00181-CR
                           ____________________

                      BOBBY ERNEST SMITH, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________            ______________

                    On Appeal from the 75th District Court
                           Liberty County, Texas
                         Trial Cause No. CR31219
________________________________________________________             _____________

                                     ORDER

      Appellant, Bobby Ernest Smith, filed a motion to abate the appeal and to

remand the case to the trial court for an evidentiary hearing on Smith’s motion for

new trial. The trial court scheduled a timely hearing but could not proceed with the

hearing on the motion for new trial because defense counsel did not request a

bench warrant and the appellant was not present for the hearing. Smith contends he

is entitled to an evidentiary hearing on his motion for new trial. See generally Tex.



                                         1
R. App. P. 44.4. The State did not object to an abatement and remand for an

evidentiary hearing on the appellant’s motion for new trial.

      We abate the appeal and remand the case to the trial court for a motion for

new trial hearing at which counsel for the State, counsel for the appellant, and

appellant shall be present in person. A supplemental reporter’s record of the

motion for new trial hearing and a supplemental clerk’s record containing any

orders and findings of the trial court shall be filed with the Court of Appeals on or

before November 23, 2015. The appeal shall be reinstated without further order of

this Court when the supplemental record is filed.

      ORDER ENTERED October 22, 2015.

                                                               PER CURIAM

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                         2
