            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                            PD-1681-07

                         LEOFRIC DARRELL TAYLOR, Appellant

                                                 v.

                                    THE STATE OF TEXAS

                ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                      FROM THE FIFTH COURT OF APPEALS
                                DALLAS COUNTY

       Per curiam.

                                          OPINION

       Appellant was convicted of indecency with a child and the trial court assessed punishment

at twenty-five years’ confinement. Appellant filed a motion for new trial. The trial judge signed the

“Order” portion of the motion and circled “granted.” The judge also appointed counsel for appeal

and certified the case for appeal. When the reporter’s record was not timely filed, the court of

appeals abated the appeal and ordered the trial court to make certain findings, including “whether

appellant desires to prosecute the appeal[, and] whether appellant is indigent,” among others. In

compliance with the order, the trial court made findings which were subsequently adopted by the

court of appeals, including a finding that appellant desired to prosecute the appeal. Thereafter, the

record was filed and briefs were filed by both parties.
                                                            LEOFRIC DARRELL TAYLOR – 2


       The State subsequently filed a motion to abate the appeal, asking that the case be sent back

to the trial court to determine whether the trial court “intended to grant Appellant a new trial or

intended for Appellant to attempt to gain relief via resort to the appellate process.”

The court of appeals dismissed the appeal, holding that because the trial court granted the motion

for new trial, it had no jurisdiction to consider appellant’s appeal or the State’s motion to abate.

Taylor v. State, No. 05-06-01076-CR (Tex. App.–Dallas Sept. 18, 2007). The State has filed a

petition for discretionary review, contending that because there is a conflict in the record as to

whether the trial court intended to grant a motion for new trial or an appeal, the court of appeals

should have abated the appeal to ascertain the trial court’s intent. We agree.

       The record contains both a granted motion for new trial, and a perfected appeal. The trial

court could not have intended both. Faced with a conflicting record concerning its jurisdiction, the

court of appeals should have abated to clarify which action was intended by the trial court. TEX . R.

APP . P. 44.4; LaPointe v. State, 225 S.W.3d 513, 520 (Tex. Crim. App. 2007), cert. denied, 128 S.

Ct. 544 (2007). We grant the State’s petition for discretionary review, vacate the judgment of the

court of appeals, and remand this case to that court with instructions to abate the appeal and order

appropriate findings by the trial court.


DELIVERED: FEBRUARY 27, 2008
PUBLISH
