                                  NO. 07-06-0211-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL B

                                JANUARY 25, 2007
                         ______________________________

                              ERSKINE L.T. ALLEN, JR.,

                                                              Appellant
                                            v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

                  NO. 22,580; HON. CECIL PURYEAR, PRESIDING
                       _______________________________

                                   Abatement
                        _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Pending before the court is the motion of Erskine L.T. Allen, Jr. requesting that the

cause be abated to determine whether a final judgment has been entered. The record

contains no document entitled order or judgment disposing of Allen’s petition for DNA

testing. Instead, it appears that he appealed due to a notation of the trial judge on

correspondence from appellant. The notation reads: “file no action by Court. Def

previously filed DNA request. There is no merit to the request. There is no DNA to be

tested. 4/19/06 /s/ C. Puryear.” (Emphasis added). Like counsel, we too are unable to
discern if the notation evinces an intent to render a final, appealable order denying Allen

relief or whether it is simply an indication that the trial court did and will not act on the DNA

request.

       Consequently, we abate the appeal and remand the cause to the 137th District

Court of Lubbock County (trial court) for further proceedings. See Dion’s of Tex. v.

Shamrock Econ. Dev. Corp., No. 07-04-0050-CV, 2004 Tex. App. LEXIS 7408 (Tex. App.–

Amarillo, February 25, 2005, no pet.) (holding that a court of appeals may abate an appeal

to permit clarification by the trial court of whether its order is final) (not designated for

publication). Upon remand, the trial court shall determine whether a final order has been

entered in the cause and, if so, identify that order finally disposing of Allen’s request for

DNA testing. The trial court shall also cause to be developed a supplemental clerk’s record

containing findings of fact and conclusions of law addressing the issues mentioned and,

if a final order has been entered, a copy of that order. Additionally, the trial court shall

cause the supplemental clerk’s record to be filed with the clerk of this court on or before

February 23, 2007. Should additional time be needed to perform these tasks, the trial

court may request same on or before February 23, 2007.

       It is so ordered.

                                                    Per Curiam

Do not publish.




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