                                                                                     ACCEPTED
                                                                                 03-15-00289-CR
                                                                                         7214456
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                            10/2/2015 4:28:18 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                 NO.    03-15-00289-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 OF TEXAS     10/2/2015 4:28:18 PM
                                                         JEFFREY D. KYLE
                                                               Clerk

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

                                         Appellant

                              V.



               THE     STATE O F TEXAS
                                    Appellee


            Appeal in Cause N o . 9767 in the
33'^'* Judicial District Court of Burnet County, Texas



R e s p o n s e of Appellee        to Motion    to    Abate


                          OFFICE O F D I S T R I C T A T T O R N E Y
                          33^^ and 424*^ J U D I C 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
                                             L
                              H I S T O R Y O F T H E 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 V o l . 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. 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 matter under advisement.            RR Vol. 4 Page 54.

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 Vol. 5

Page 5. This appeal follows. CR Vol. 1 [Cause N o . 9767] Page 72. Collateral w i t h

this appeal is the appeal o f the trial court's denial o f Appellant's application for writ


                                        Page 2 o f 5
o f habeas corpus filed pursuant to art. 11.072 o f the Texas Code o f Criminal

Procedure. See 03-15-00290.




                                           11.

                            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 03-15-00290.

      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

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

Austin, 2015).

      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).



                                          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
                                      Page 3 o f 5
need to ask this Court for the relief being requested as well as this Court's authority

to either grant or deny such request. The undersigned would leave the 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




                                            fery^C^unyaE^
                                            Assistant District Attorney
                                            State Bar N o . 03353500
                                     A T T O R N E Y FOR TFIE 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 448 words according to the WordPerfect™ X 7 word count tool.




                                       Page 4 o f 5
                         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 w i t h 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.




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