Imelda Barrera v. State

Fourth Court of Appeals San Antonio, Texas April 21, 2020

No. 04-19-00708-CR

Imelda BARRERA, Appellant

v.

The STATE of Texas, Appellee

From the 79th Judicial District Court, Brooks County, Texas Trial Court No. 18-06-11255-CRSI Honorable Federico Hinojosa, Judge Presiding

ORDER

On April 7, 2020, appellant filed a “Motion to Abate Appeal and Remand for Out of Time Motion for New Trial” in which appellant asserts she wishes to file an out-of-time motion for new trial based on the ineffective assistance of counsel at trial.

The issue appellant seeks to develop can be properly raised in a post-conviction application for writ of habeas corpus. See Pettway v. State, 4 S.W.3d 390, 391 (Tex. App.— Houston [1st Dist.] 1999, order) (per curiam) (holding that defendant failed to show good cause to suspend appellate rules to allow him to file out-of-time motion for new trial when defendant could raise ineffectiveness claim in post-conviction habeas corpus proceeding); Fuentes v. State, No. 01-04-01018-CR, 2006 WL 2640807, at *2 (Tex. App.—Houston [1st Dist.] Sept. 14, 2006, no pet.) (mem. op., not designated for publication) (denying defendant’s motion to abate because ineffectiveness issues defendant sought to develop could “properly be raised in a post-conviction writ of habeas corpus [proceeding]”); see also Griffith v. State, 507 S.W.3d 720, 723 (Tex. Crim. App. 2016) (Hervey, J., concurring) (ineffective-assistance claims may “be addressed on habeas”). This court has previously held that it will not abate an appeal for this purpose because ineffective assistance may be raised in a post-conviction habeas corpus proceeding. see also Bowler v. State, 822 S.W.2d 334, 335 (Tex. App.—San Antonio 1992, pet. ref’d).

Appellant’s “Motion to Abate Appeal and Remand for Out of Time Motion for New Trial” is DENIED.

On April 7, 2020, appellant also filed a motion for extension of time requesting an additional seven (7) days from the date of an order denying her motion to abate. Appellant’s motion for an extension of time is GRANTED. Appellant’s brief is due on or before April 28, 2020.

_________________________________ Irene Rios, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 21st day of April, 2020.

___________________________________ MICHAEL A. CRUZ, Clerk of Court