IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS EX PARTE DINA WALL ORIGINAL CONTEMPT PROCEEDING FROM RANDALL COUNTY The

Texas Judiciary Online - HTML Opinion     Close This Window

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,378

BRENT RAY BREWER, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 6997-A

IN THE 47TH DISTRICT COURT

RANDALL COUNTY

Per Curiam.

ORDER

The above-styled and numbered cause is pending before this Court as a result of appellant's capital murder conviction and resulting sentence of death in the 47th District Court of Randall County, Cause No. 6997-A, styled The State of Texas v. Brent Ray Brewer. The State has filed in this Court a motion entitled "State's Motion to Abate Appeal in Order for Trial Court to Conduct a Nunc Pro Tunc Evidentiary Hearing and to Supplement Record." The State has also filed a "State's First Motion for Extension of Time to File State's Brief."

Appellant was convicted of capital murder and sentenced to death in 1991. In 1994, this Court affirmed his conviction but remanded for a new punishment trial. Brewer v. State, No. AP-71,307 (Tex. Crim. App. June 22, 1994). Prior to the new punishment trial, appellant filed a motion requesting the trial court to quash the indictment because Article 37.071 of the Texas Code of Criminal Procedure was unconstitutional. The State alleges that there is a discrepancy in the record regarding the disposition of this motion because the trial judge (who is now deceased) signed an order granting the motion on the same day that he orally denied the motion at the pre-trial hearing.

Because the trial court is in a better position to determine the accuracy of the record, we abate the appeal and remand this cause to the trial court to resolve this alleged discrepancy. Therefore, the trial court is directed to prepare and file findings of fact regarding the disposition of appellant's motion to quash the indictment. The trial court clerk must then prepare, certify, and file in this Court a supplemental clerk's record containing the trial court's findings. The findings are to be made, and the supplemental clerk's record is to be filed, within 30 days of the date of this order. The State's brief will be due in this Court within 90 days of the date that the supplemental clerk's record is filed.

IT IS SO ORDERED THIS THE 11th DAY OF MAY, 2011.

Do not publish