Adalberto Estrella v. State of Texas--Appeal from 186th Judicial District Court of Bexar County

Appellant

v.

STATE of Texas,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 98-CR-3206

Honorable Phil Chavarria, Jr., Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and Filed: March 13, 2002

APPEAL ABATED; REMANDED

By this opinion, we withdraw our opinion of February 6, 2002 and substitute the following:

Because the issues in this appeal involve the application of well-settled principles of law, we abate this appeal and remand it to the trial court for further proceedings in this memorandum opinion. Tex. R. App. P. 47.1. We remand this case for the following reasons:

1. Within ten days of filing, Estrella presented his motion for new trial to the visiting judge's court coordinator, requested a hearing, and obtained a hearing date for the motion. The trial court erred in finding Estrella failed to satisfy the presentment requirements of Tex. R. App. P. 21.6. Carranza v. State, 960 S.W.2d 76, 78-79 (Tex. Crim. App. 1998); Butler v. State, 6 S.W.3d 636, 641 (Tex. App. - Houston [1st Dist.] 1999, pet. ref'd). We sustain Estrella's first issue on appeal.

2. In his second issue, Estrella argues the trial court erred in failing to conduct a hearing on his motion. See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) (holding "the trial judge abuses his discretion in failing to hold a hearing on a motion for new trial that raises matters which are not determinable from the record"). In this case, the trial court's sole ground for refusing to consider Estrella's motion was its finding that Estrella failed to satisfy Tex. R. App. P. 21.6. Because the trial court made no finding as to whether Estrella's motion raised matters "not determinable from the record," we do not reach Estrella's second issue. Rather, we remand this case to the trial court to make a finding of whether Estrella was entitled to a hearing and for further proceedings, if any, resulting from that finding. Tex. R. App. P. 43.6; Tex. R. App. P. 44.4; see Reyes v. State, 2001 WL 909312, *1-2 (Tex. App. - Houston [1st Dist.] Aug. 2, 2001, no pet.).

The appeal is abated for 90 days and remanded to the trial court for further proceedings.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH