State v. Kevin Brown, Jr.

IN THE TENTH COURT OF APPEALS No. 10-05-00343-CR The State of Texas, Appellant v. Kevin Brown, Jr., Appellee From the County Court at Law No. 2 Brazos County, Texas Trial Court No. 02-00670-CRM-CCL2 ABATEMENT ORDER At the conclusion of a hearing, the trial court orally granted Kevin Brown, Jr.’s motion to dismiss premised on speedy trial grounds. However, the court apparently never memorialized that ruling in a written order.[1] Nevertheless, the State promptly filed a notice of appeal. The Clerk of this Court notified the parties by letter dated March 17, 2006 that this appeal is subject to dismissal because: (1) no signed dismissal order is currently in the clerk’s record; and (2) a $125 filing fee has not been paid. However, it appears that this letter is not entirely accurate with regard to the costs which are to be paid in a State’s appeal or with regard to the proper procedure to be followed when the record does not contain an appealable order which the trial court apparently intended to sign but did not. Costs of Appeal Article 44.01(f) of the Code of Criminal Procedure provides in pertinent part that “[t]he state shall pay all costs of appeal” when the State is appealing an order of dismissal. Tex. Code Crim. Proc. Ann. art. 44.01(f) (Vernon Supp. 2005). However, the $125 filing fee referenced in the Clerk’s letter is required only in civil appeals. See Tex. Gov’t Code Ann. §§ 51.005, 51.207 (Vernon 2005); Tex. R. App. P. 5; Order Regarding Fees Charged in Civil Cases in the Supreme Court and the Courts of Appeals, Misc. Docket No. 98-9120, 971-972 S.W.2d (Tex. Cases) xxxviii-xl (Tex. Jul. 21, 1998). The only costs of appeal generally required in a criminal appeal are the costs for preparation of the appellate record. See Olivarez v. State, 183 S.W.3d 59, 60 & n.2 (Tex. App.—Waco 2005) (per curiam), reh’g granted, judgment withdrawn, 183 S.W.3d 59, 63 (Tex. App.—Waco 2006, order) (per curiam). We presume the State has made the necessary arrangements for the clerk’s and reporter’s fees for preparation of the record because the clerk’s and reporter’s records have been filed with the Clerk of this Court. Premature Notice of Appeal Because there is no signed dismissal order, the State’s notice of appeal is premature. See Tex. R. App. P. 27.1(b); Ex parte Crenshaw, 25 S.W.3d 761, 764-65 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); State v. Rollins, 4 S.W.3d 453, 454 n.1 (Tex. App.—Austin 1999, no pet.); see also Harrison v. Tex. Dep’t of Crim. Justice, 134 S.W.3d 490, 491 (Tex. App.—Waco 2004, order) (per curiam). The First Court of Appeals abated the appeal in Crenshaw “to allow the trial court to sign a written order reflecting its oral decision.” 25 S.W.3d at 764; see also Rollins, 4 S.W.3d at 454-55 (abating appeal for trial court to determine date dismissal orders were signed because that date was in dispute). This Court has followed the same procedure in civil appeals. See, e.g., Harrison, 134 S.W.3d at 491-92. It appears that the trial court intended to sign a dismissal order in Brown’s case. However, the record does not contain such an order. Accordingly, we abate this cause to the trial court for further consideration of this matter. If the court intended to sign a dismissal order, then it should sign an appropriate order to effectuate its intent. The trial court shall, within thirty days after the date of this Order: (1) conduct a hearing if necessary; (2) make appropriate orders and findings of fact and conclusions of law; and (3) deliver any orders and findings of fact and conclusions of law to the trial court clerk. The trial court clerk shall: (1) prepare a supplemental clerk’s record containing all orders and findings of fact and conclusions of law which the trial court renders or makes; and (2) file the supplemental clerk’s record with the Clerk of this Court within forty-five days after the date of this Order. PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissenting) Appeal abated Order issued and filed April 19, 2006 Publish [1] The court did, however, sign written dismissal orders in the cases of Brown’s three co-defendants. The court heard all 4 dismissal motions in the same hearing. cts, we find it unnecessary to address whether the district court erred in denying Thomas' writ of habeas corpus. See id. We overrule his single point of error. We affirm the judgment. BOBBY L. CUMMINGS Justice Before Chief Justice Thomas, Justice Cummings, and Justice Vance Affirmed Opinion delivered and filed July 15, 1992 Do not publish