Ex Parte: Martin Blanco Enriquez--Appeal from 34th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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) No. 08-04-00298-CR

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) Appeal from the

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EX PARTE: MARTIN BLANCO ENRIQUEZ ) 41st District Court

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) of El Paso County, Texas

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) (TC# 960D02669)

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O P I N I O N

Appellant Martin Blanco Enriquez was charged by indictment with possession of marijuana in an amount more than 50 pounds, but less than 2,000 pounds. Pursuant to a plea agreement, the trial court deferred a finding of guilt and placed Appellant on community supervision for 10 years. In April of 1999, the trial court entered an order discharging Appellant from community supervision. Several years later, Appellant filed an application for a writ of habeas corpus. The trial court signed an order denying the writ without a hearing in April 2004.

Thereafter, Appellant again filed his writ application alleging identical grounds. The State submitted an answer to Appellant=s writ application which asserted in part that the trial court lacked jurisdiction to grant Appellant any relief. The matter came to be heard on August 20, 2004. At the conclusion of the hearing, the trial court informed both parties that he had read the briefs, material, and affidavits and would make a decision accordingly. Ultimately, Appellant=s writ application was denied by written order dated August 20, 2004 and he appealed to this Court.

In November 2005, we abated this appeal and ordered the trial court to clarify its earlier order denying Appellant=s writ application and enter findings of fact and conclusions of law if applicable. See Ex Parte Enriquez, S.W.3d , 2005 WL 3036531 *5 (Tex.App.--El Paso November 03, 2005, pet. ref=d). In response to this Court=s holding on a jurisdictional issue, the State filed a motion for rehearing which we subsequently overruled. The State then filed a petition for discretionary review. The case remained pending in the Court of Criminal Appeals until June 2006, when that court refused the State=s petition. The Court of Criminal Appeals then returned the appellate record to this Court.

DISCUSSION

During the intervening period, the trial judge, Hon. Herb Cooper, died before clarifying the order denying Appellant=s writ application. Without clarification, we are unable to determine if Appellant was entitled to findings of fact and conclusions of law. See Tex.Code Crim.Proc.Ann. art. 11.072, ' 7(a)(Vernon 2005). Because clarification of the trial court=s order as a remedy is now unavailable, we rescind our November 3, 2005, order abating this appeal and reinstate the instant cause. We reverse the order of the trial court dated August 20, 2004, and remand for further proceedings in order for the trial court to consider Appellant=s writ application in accordance with Tex.Code Crim.Proc.Ann. art. 11.072. See Tex.R.App.P. 43.2(d).

August 17, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

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