


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-05-00343-CR
 
The State of Texas,
                                                                      Appellant
 v.
 
Kevin Brown, Jr.,
                                                                      Appellee
 
 
 

From the County Court at Law No.
2
Brazos County, Texas
Trial Court No. 02-00670-CRM-CCL2
 

ABATEMENT ORDER

 




          At the conclusion of a hearing, the
trial court orally granted Kevin Brown, Jr.’s motion to dismiss premised on
speedy trial grounds.  However, the court apparently never memorialized that
ruling in a written order.[1] 
Nevertheless, the State promptly filed a notice of appeal.
          The Clerk of this Court notified the
parties by letter dated March 17, 2006 that this appeal is subject to dismissal
because: (1) no signed dismissal order is currently in the clerk’s record; and
(2) a $125 filing fee has not been paid.  However, it appears that this letter
is not entirely accurate with regard to the costs which are to be paid in a
State’s appeal or with regard to the proper procedure to be followed when the
record does not contain an appealable order which the trial court apparently
intended to sign but did not.
Costs of Appeal
          Article 44.01(f) of the Code of
Criminal Procedure provides in pertinent part that “[t]he state shall pay all
costs of appeal” when the State is appealing an order of dismissal.  Tex. Code Crim. Proc. Ann. art. 44.01(f)
(Vernon Supp. 2005).  However, the $125 filing fee referenced in the Clerk’s
letter is required only in civil appeals.  See Tex. Gov’t
Code Ann. §§ 51.005, 51.207 (Vernon 2005); Tex. R. App. P. 5; Order Regarding Fees Charged in Civil
Cases in the Supreme Court and the Courts of Appeals, Misc. Docket No. 98-9120,
971-972 S.W.2d (Tex. Cases) xxxviii-xl (Tex. Jul. 21, 1998).  The only costs of
appeal generally required in a criminal appeal are the costs for preparation of
the appellate record.  See Olivarez v. State, 183 S.W.3d 59, 60 &
n.2 (Tex. App.—Waco 2005) (per curiam), reh’g granted, judgment
withdrawn, 183 S.W.3d 59, 63 (Tex. App.—Waco 2006, order) (per curiam).  We
presume the State has made the necessary arrangements for the clerk’s and
reporter’s fees for preparation of the record because the clerk’s and
reporter’s records have been filed with the Clerk of this Court.
Premature Notice of Appeal
          Because there is no signed dismissal
order, the State’s notice of appeal is premature.  See Tex. R. App. P. 27.1(b); Ex parte
Crenshaw, 25 S.W.3d 761, 764-65 (Tex. App.—Houston [1st Dist.] 2000, pet.
ref’d); State v. Rollins, 4 S.W.3d 453, 454 n.1 (Tex. App.—Austin 1999,
no pet.); see also Harrison v. Tex. Dep’t of Crim. Justice, 134 S.W.3d 490,
491 (Tex. App.—Waco 2004, order) (per curiam).  The First Court of Appeals
abated the appeal in Crenshaw “to allow the trial court to sign a
written order reflecting its oral decision.”  25 S.W.3d at 764; see also
Rollins, 4 S.W.3d at 454-55 (abating appeal for trial court to determine
date dismissal orders were signed because that date was in dispute).  This
Court has followed the same procedure in civil appeals.  See, e.g.,
 Harrison, 134 S.W.3d at 491-92.
          It appears that the trial court
intended to sign a dismissal order in Brown’s case.  However, the record does
not contain such an order.  Accordingly, we abate this cause to the trial court
for further consideration of this matter.  If the court intended to sign a
dismissal order, then it should sign an appropriate order to effectuate its
intent.
          The trial court shall, within thirty
days after the date of this Order: (1) conduct a hearing if necessary; (2) make
appropriate orders and findings of fact and conclusions of law; and (3) deliver
any orders and findings of fact and conclusions of law to the trial court
clerk.
          The trial court clerk shall: (1)
prepare a supplemental clerk’s record containing all orders and findings of
fact and conclusions of law which the trial court renders or makes; and (2)
file the supplemental clerk’s record with the Clerk of this Court within
forty-five days after the date of this Order.
PER CURIAM
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
(Chief
Justice Gray dissenting)
Appeal abated
Order issued and filed
April 19, 2006
Publish




[1]
          The court did, however, sign
written dismissal orders in the cases of Brown’s three co-defendants.  The
court heard all 4 dismissal motions in the same hearing.



cts, we find it unnecessary to address whether the district court erred
in denying Thomas' writ of habeas corpus.  See id.  We overrule his single point of error.
      We affirm the judgment.
 
                                                                                 BOBBY L. CUMMINGS
                                                                                 Justice

Before Chief Justice Thomas,
          Justice Cummings, and
          Justice Vance
Affirmed
Opinion delivered and filed July 15, 1992
Do not publish
