                                                                                     ACCEPTED
                                                                                 03-15-00290-CR
                                                                                         7214916
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                            10/2/2015 4:39:06 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                N O . 03-15-00290-CR

           I N T H E C O U R T O F APPEALS                   FILED IN
                                                      3rd COURT OF APPEALS
                                                          AUSTIN, TEXAS
    O F T H E T H I R D D I S T R I C T O F TEXAS     10/2/2015 4:39:06 PM
                                                        JEFFREY D. KYLE
                                                              Clerk

        RAFAEL H E R N A N D E Z - P R A D O ,
                                    Appellant

                          V.



              T H E STATE O F TEXAS
                                 Appellee



           Appeal i n Cause N o . 9767A i n the
33'"'^ Judicial District Court o f Burnet County, Texas



Response      of Appellee      to Motion      to Abate


                       OFFICE OF D I S T R I C T A T T O R N E Y
                       33^^ and 424'^ J U D I C I A L D I S T R I C T S
                       Wiley B. McAfee, District Attorney
                       P. O. Box 725, Llano, Texas 78643
                       Telephone            Telecopier
                       (325) 247-5755      (325) 247-5274
                        g.bunyard@co.llano.tx.us

                        By: Gary W . Bunyard
                            Assistant District Attorney
                            State Bar N o . 03353500
                            A T T O R N E Y FOR APPELLEE

               Oral Argument Waived
                                             1.
                              H I S T O R Y O F TFIE CASE

      Appellant plead guilty on October 10, 2003, to the first degree felony offense

o f Burglary o f a Habitation w i t h Intent to C o m m i t a Felony.   RR Vol. 2 Page 7.

The trial court deferred entering a finding o f guilty and placed Appellant on

community supervision for a period o f ten years.             RR Vol. 2 Page 11.     On

October 1,2013, the State o f Texas filed a Request for Adjudication alleging specific

violations o f the terms o f community supervision.        CR Vol. 1 [Cause N o . 9767'

Page 53.    O n January 7, 2015, Appellant filed his application for post conviction

application for w r i t o f habeas corpus under art. 11.072 o f the Texas Code o f

Criminal Procedure.      CR Vol. 1 [Cause N o . 9767A] Page 81. The trial court held

an evidentiary hearing on February 13, 2015, where the trial court heard testimony

from DPS Trooper Frank Randolph and then reset the matter for further

proceedings. RR Vol. 3. O n March 25,2015, the trial court heard further evidence

and took the Request for Adjudication under advisement. RR Vol. 4 Page 54. The

Application for Post Conviction W r i t o f Habeas Corpus was on this date denied i n

writing. CR Vol. 1 [Cause N o . 9767A] Page 86.




                                        Page 2 of 6
       O n May 4,2015, the trial court found certain allegations o f the State's Request

for Adjudication to be True, revoked Appellant's community supervision,

adjudicated Appellant's guilt on the offense o f Burglary o f a Habitation w i t h Intent

to C o m m i t a Felony, and sentenced Appellant to serve a term o f fifteen (15) years

i n the Institutional Division o f the Texas Department o f Criminal Justice. RR V o l .

5 P ^ e 5.

       Notice o f Appeal o f the denial o f the art. 11.072 writ application was filed on

May 8, 2015. CR Vol. 1 [Cause N o . 9767A] Page 87.




                                            II.

                            ISSUE A N D A U T H O R I T Y

      Appellant requests that this Court abate this appeal until such time as the trial

court makes findings o f fact and conclusions o f law i n regard to its denial o f

Appellants art. 11.072 wo-it application.

       This Court has authority to order the abatement o f an appeal to allow the trial

court to correct or amend defects or irregularities. Tex. R. App. Proc. Rule 44.3; See

Quattkbaum v. State, unpublished opinion at N o . 03-15-00488-CR (Tex. App. -

Austin, 2015).




                                       Page 3 of 6
      I n the absence o f findings o f fact and conclusions o f law the appellate court

must presume that the trial court implicitly resolved all issues o f historical fact and

witness credibility i n the light most favorable to its ultimate ruling. State v. Saenz,

411 S.W.3d 488, 495 (Tex. C r i m . App. 2013)(footnote 4).

      A Notice o f Appeal filed by a defendant must be filed w i t h i n 30 days after the

day sentenced is imposed or suspended i n open court, or after the day the trial court

enters an appealable order. Tex. R. App. Proc. Rule 26.2 (a)(1). A n "applicant may

appeal under Article 44.02 and Rule 31, Texas Code o f Appellate Procedure" i f the

trial judge "denied the application i n whole or i n part." Villanueva v. State, 252

S.W.3d 391,396 (Tex. C r i m . App. 2008).




                                          III.

                                   CONCLUSION

      Appellant's counsel consulted w i t h the undersigned prior to the filing o f his

M o t i o n to Abate. The undersigned recognizes M r . Prust's duty to his client i n the

need to ask this Court for the relief being requested as well as this Court's authority

to either grant or deny such request.     While there does appear to be an issue o f

jurisdiction considering the date the order denying the w r i t application was signed

and the date o f the filing o f the Notice o f Appeal, the undersigned would leave the

                                      Page 4 of 6
issue i n the hands o f this Court and would neither j o i n nor oppose Appellant's

M o t i o n to Abate.




                                       Respectfully submitted,

                                      OFFICE O F D I S T R I C T A T T O R N E Y
                                      33^^ & 424™ J U D I C I A L D I S T R I C T S
                                      W i l l y B. "Sonny" McAfee, District Attorney
                                      P. O. Box 725
                                      Llano, Texas 78643
                                      Telephone             Telecopier
                                      (325) 247-5755        (325) 247-5274




                                          Assistant District Attorney
                                          State Bar N o . 03353500
                                   A T T O R N E Y F O R T H E STATE O F TEXAS




                        C E R T I F I C A T E OF COMPLIANCE

      This is to certify that the appropriate portions o f the foregoing response
contains 613 words according to the WordPerfect™ X 7 word count tool.




                                     Page 5 of 6
                        C E R T I F I C A T E OF SERVICE

      This is to certify that a true copy o f the above and foregoing instrument,
together v^ith this proof o f service hereof, has been forwarded on the 2nd day o f
October 2015, to M r . Gary Prust, counsel for Appellant, by email and eserve.




                                    Page 6 of 6
