                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00396-CR
                              NO. 02-14-00397-CR


MICHAEL SCOTT HAYNES                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
                TRIAL COURT NO. CR13-0614, CR13-0615

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                         MEMORANDUM OPINION 1

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      In a single issue, appellant challenges this court’s denial of his motion to

abate this appeal to allow him to file––and the trial court to consider and hold an

evidentiary hearing on––an out-of-time motion for new trial. We affirm.




      1
       See Tex. R. App. P. 47.4.
                            Procedural Background

      While represented by appointed counsel, appellant pled guilty pursuant to

an open plea to the third degree felony offense of evading arrest with a vehicle.

After a hearing to consider punishment, the trial court sentenced appellant to two

years’ confinement in TDCJ–Institutional Division.         Seventeen days later,

appellant filed a pro se notice of appeal, and the trial court appointed him counsel

the next day.    Appellant’s newly-appointed appellate counsel filed a timely,

unsworn motion for new trial and motion in arrest of judgment. Several days

later, appellate counsel filed a “Motion for Reconsideration on New Trial and

Motion in Arrest of Judgment Hearing,” in which he stated, “The Defendant needs

to develop testimony surrounding the voluntariness of his guilty plea. The only

way to do that is from witness testimony during a hearing.” The record does not

show that the trial court expressly ruled on the motion for new trial and arrest of

judgment, but a week after appellant filed the motion for reconsideration, the trial

court signed an order indicating that appellant was not entitled to a hearing.

      Five months after filing his notice of appeal, appellant filed in this court a

motion seeking to have the appeal abated for him to file an out-of-time motion for

new trial. Appellant indicated that he intended to attach to the amended motion

an affidavit that he apparently sent to his appellate counsel before the motion for

new trial period had expired but that counsel had not discovered in time to file an

amended motion for new trial. In his motion, appellant contended that if the trial

court believed the allegations in his affidavit, then he would be entitled to an


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evidentiary hearing and could be entitled to a new trial because his plea was

involuntary due to ineffectiveness of his appointed trial counsel. His grounds

were that judicial economy “should be considered, to flesh out a possible

ineffective assistance claim rather than wait for a Writ of Habeas Corpus to be

filed.” This court denied the motion. Appellant now raises as his sole issue that

this court erred by denying the motion.

                                     Analysis

      The court of criminal appeals has held that a court of appeals erred by

abating an appeal for the trial court to hold an evidentiary hearing on a motion for

new trial when the State claimed on appeal that the motion, which was not

accompanied by an affidavit, was not timely presented. 2 Price v. State, 826

S.W.2d 947, 947–48 (Tex. Crim. App. 1990). The court of criminal appeals has

also held that rule 21.4 prohibits a defendant from filing an amended motion for

new trial later than thirty days after the imposition of sentence in open court, even

upon leave of court. Tex. R. App. P. 21.4; State v. Moore, 225 S.W.3d 556, 558

(Tex. Crim. App. 2007). Although in Jack v. State, the court of criminal appeals

dismissed the State’s appeal of a court of appeals’s abatement order for an out-

of-time motion for new trial hearing, it did so because the appeal was

interlocutory. 149 S.W.3d 119, 125 (Tex. Crim. App. 2004). Nevertheless, the



      2
       Appellant has not alleged that he was denied counsel at a critical stage of
the proceeding.


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court of criminal appeals also noted in its opinion that the court of appeals had

not cited any rule allowing such an abatement procedure. Id. at 121.

      On appeal, appellant cites rules 43.6 and 44.4 as authority for this court to

abate the appeal for the trial court to hold an evidentiary hearing on an amended

motion for new trial incorporating appellant’s affidavit. But rule 44.4 allows this

court to abate only if a trial court’s erroneous action, or failure or refusal to act,

prevents the proper presentation of a case to this court. Tex. R. App. P. 44.4(a).

It does not authorize this court to allow an out-of-time motion for new trial to

develop a record so that a postconviction habeas proceeding may be avoided.

See Fakeye v. State, 227 S.W.3d 714, 717–18 (Tex. Crim. App. 2007)

(explaining that court of appeals should not abate under rule 44.4 unless trial

court “has erroneously withheld information necessary to evaluate a defendant’s

claim on appeal . . . or has prevented the defendant from submitting information

necessary to evaluate his claim” and that not all trial court error should result in

abatement under rule 44.4 even if error may have affected decision to plead

guilty); cf. Oldham v. State, 977 S.W.2d 354, 359 (Tex. Crim. App. 1998) (op. on

reh’g) (holding that “using Rule 2(b) to ‘suspend’ or enlarge appellate time limits

which regulate the orderly and timely process of moving a case from trial to

finality of conviction is overstepping the contemplated uses of Rule 2(b)” and this

principle is not defeated by the goal of speeding up the process), cert. denied,

525 U.S. 1181 (1999).




                                          4
      Here, the record does not show trial court error because the trial court is

not required to hold an evidentiary hearing on either an unsworn motion for new

trial raising matters not determinable from the record or an amended motion for

new trial filed later than thirty days after the imposition of sentence in open court.

See Tex. R. App. P. 21.4; Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App.

2005); McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985). Appellant

has cited no other authority, nor have we found any, authorizing the relief he

requests.

      Accordingly, we overrule appellant’s sole issue and affirm the trial court’s

judgment.

                                                    PER CURIAM

PANEL: LIVINGSTON, C.J; DAUPHINOT and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 2, 2015




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