                                                                                                             ACCEPTED
                                                                                                        01-15-00129-CR
                                                                                              FIRST COURT OF APPEALS
                                                                                                      HOUSTON, TEXAS
                                                                                                    3/9/2015 3:27:55 PM
                                                                                                   CHRISTOPHER PRINE
                                                                                                                 CLERK

                                       NO. 01-15-00129-CR

IN RE                                            §      IN THE COURT OF APPEALS
                                                                             FILED IN
                                                 §                    1st COURT OF APPEALS
                                                 §      1ST SUPREME JUDICIAL
                                                                          HOUSTON,   TEXAS
                                                                                DISTRICT
                                                 §                    3/9/2015 3:27:55 PM
ESCOBAR, TULIO                                   §      AT HOUSTON, TEXAS
                                                                      CHRISTOPHER A. PRINE
                                                                              Clerk

               MOTION TO STAY PROCEEDINGS IN THE TRIAL COURT

TO THE HONORABLE JUDGES OF THIS COURT:

        Now comes TULIO ESCOBAR, Relator, in the above styled and numbered cause, and

moves the court to stay the proceedings in the 351st District Court, under Cause No. 1329944,

styled State v. Tulio Escobar, specifically, the motion to revoke probation set for March 24, 2015,

and in support of this motion shows:

                                                 I.

        Relator filed a Petition for a Writ of Mandamus with this court on February 12, 2015 in an

attempt to compel the 351st to sign the Certificate of Appealability in his Notice of Appeal attached

to his 11.072 Application for Writ of Habeas Corpus (Trial Court Cause No. 1329944-A). Shortly

thereafter, this Court instructed the District Clerk to forward up the record for review, which was

filed under Cause No. 01-15-00154-CR on February 18, 2015.

        After reviewing the record, this Court issued an Order of Abatement on March 5, 2015. In

the order, this Court noted that the Clerk’s Record lacked the judge’s signature on the Certificate

of Appealability, as well as findings of fact and conclusions of law, and ordered the 351st to hold

a hearing regarding these issues and file a supplemental clerk’s record within 30 days addressing

the results.

        On March 6, 2015, appellate counsel went to the 351st in an attempt to schedule the hearing

requested under the Order of Abatement. Upon approaching the bench, appellate counsel was
informed that the 351st intended to move forward with the motion to revoke in the underlying cause

number (see above). Counsel then attempted to explain that the abatement was for the purposes of

correcting the record and that the 351st currently lacked jurisdiction to rule on the matter.

       The trial court then stated that the appeal was abated, and therefore, the court was within

its rights to issue a ruling. Counsel again asked that the trial court hold a hearing to complete the

record and remove the hearing for the motion to revoke from its docket. Although the trial court

granted counsel’s request for a hearing to correct the record, it refused to remove the hearing on

the motion to revoke from its docket and again stated its intention to move forward on that matter.

                                                 II.

       A hearing to correct the record is set for March 19, 2015, and a hearing on the motion to

revoke is set for March 24, 2015. Relator asserts that the trial court lacks the jurisdiction to hear

the motion to revoke at this time. Although the appeal has been abated, the stated reasons for

remanding back to the trial court were solely to correct and complete the record, and because the

clerk was commanded to file a supplemental record within 30 days of the date of the Order of

Abatement, at which point, the appeal would be reinstated.

       Therefore, Relator is requesting that this Court issue an order directing the trial court to

remove the hearing for the motion to revoke set on March 24, 2015 from its docket until after the

appeal is reinstated and ruled upon. If this Court does not issue the requested order, Relator will

suffer undue hardship and delay in the resolution of his appeal.

       First, moving forward on the motion to revoke will sabotage the normal judicial efficiency

afforded to criminal defendants generally. Further, counsel will be required to either amend his

brief with this Court to address any issues that arose during the hearing, or file a new notice of

appeal challenging the motion to revoke, so as to ensure that all viable claims are raised. If these
claims are raised under the current appellate cause number, delay will ensue from the necessity of

filing leave to file an amended brief, as well as the actual drafting of the brief itself (it should be

noted that the abated appellate cause number is designated as a “fast-track” appeal and is intended

to be dealt with relatively quickly). If these claims are addressed under a new appellate cause

number, then there will be potentially three open cause numbers between this Court, and possibly

the 14th Court of Appeals, which may result in disparate and confusing results, leading to further

litigation in order to reconcile the cause numbers.

       WHEREFORE, Relator prays the court to stay the proceedings in Cause No. 1329944 until

the appeal of Cause No. 1329944-A (01-15-00154-CR) is complete and either denied or remanded

back to the trial court for further proceedings in line with the opinion of this Court.




                                                   Respectfully submitted,


                                                  /s/ Tom Abbate
                                                   TOM ABBATE
                                                   2425 WEST LOOP SOUTH STE 200
                                                   HOUSTON, TX 77027
                                                   OFFICE: (832) 209-2279
                                                   FAX: (800) 501-3088
                                                   tom@tomabbatelaw.com
                                                   SBOT # 24072501

                                                  ATTORNEY FOR RELATOR
                                CERTIFICATE OF SERVICE

       This is to certify that on March 9, 2015, a true and correct copy of the above and foregoing

document was served on the HON. MARK ELLIS and the District Attorney's Office, HARRIS

County, by fax.



                                               /s/ Tom Abbate
                                               TOM ABBATE
